Notch Another Win for “North End Ten” in Long Wharf Case

The decade-long effort to protect Long Wharf‘s open space by a group of current and former North End residents (dba, the North End Ten) received another win this week with a Superior Court judgement against the Mass. Department of Environmental Protection (DEP) and Boston Redevelopment Authority (BRA, now known as the Boston Planning & Development Agency). [See Mahajan et al. v. DEP and BRA ruling below.] On behalf of the resident group, former North Ender Sanjoy Mahajan has been arguing the case and commented,

We are very happy with the result and thank especially the NPS and Assistant US Attorney Christine Wichers for defending Long Wharf Park in federal court. May the City spend public money not on an appeal but on improving Long Wharf Park! Not long ago, the park had a picnic bench and could have one again.

City plans to lease the end of Long Wharf for a restaurant development were dashed last year when the BRA lost its appeal in federal appeals court to the National Park Service. The space was once proposed as Doc’s Long Wharf, a 220-seat, 4,655 square-foot eatery/bar with outdoor tables. The NPS successfully argued that a 1980 boundary map showed the space was protected as open parkland under the Land & Water Conservation Fund Act.

At issue in the latest Superior Court ruling is the Chapter 91 license that the State DEP was originally going to give the BRA in 2008. At the time, the North End Ten appealed to the Office of Appeals and Dispute Resolution (part of the DEP) to stop the license. OADR ruled against the resident group who then brought the case to the Superior Court with the argument that Long Wharf was protected as parkland under
Article 97 of the Massachusetts Constitution. In 2011, the Superior Court ruled in favor of the North End Ten. That decision resulted in the BRA appeal to the Supreme Judicial Court (SJC) who ruled in 2013 against the Article 97 protection in favor of the city agency. However, the SJC remanded the rest of the case back to Superior Court to rule on the Chapter 91 license and associated regulations.

Back at Superior Court, the North End Ten moved to submit new evidence which included the all-important National Park Service map showing the area was protected by the Land & Water Conservation Fund Act. Judge Fahey of the Superior Court agreed that the new evidence should be considered, remanding to OADR to make findings based on the new evidence.

Lead plaintiff Mahajan explains their group’s reasoning and why the case is still being argued. “When the BRA lost in 2016 to the NPS in Federal Court, the BRA then purported to withdraw its Chapter 91 license application, whereupon the state agency (DEP) and the BRA argued that the case was all moot now and OADR should dismiss the case. We argued that the license had already been voided by Superior Court Judge
Fahey when she remanded it back to OADR and that the BRA was attempting
to withdraw an application for an already voided license. So, their withdrawal of an application for an already voided license had no effect, and therefore OADR should make findings, as it had planned before the federal lawsuits. OADR recommended dismissing the case anyway, which was confirmed by the DEP Commissioner in the Final Decision. So it then came back to the Superior Court, and we had a status conference in February. The BRA and DEP there both argued that Fahey had to dismiss the case. I argued that they want a dismissal to avoid any preclusive effect of an actual ruling.”

Now, in its March 22, 2017 ruling, Superior Court Judge Fahey has ruled in favor of Mahajan, et. al. (the North End group) in saying,

The Boston Redevelopment Authority can no longer claim either that the 1980 Project Area Map is not the map of record for Long Wharf or that Long Wharf Pavilion falls outside the Land and Water Conservation Fund Act area, Section 6(f) Conservation Area for perpetuity or that it can proceed with the proposed Project within Long Wharf Pavilion in the future without the National Park Service’s (NPS) approval. (emphasis added)

The BRA/BPDA has 60 days to file any appeal, which they probably will if history is a guide. The ruling comes just as the entire Long Wharf area is currently under State review for the BRA’s revitalization effort as part of the ongoing Downtown Waterfront Municipal Harbor Plan.

The plaintiffs in the North End resident group are Sanjoy Mahajan, Victor Brogna, Stephanie Hogue, David Kubiak, Mary McGee, Thomas Schiavoni, Pasqua Scibelli, Robert Skole and Patricia Thiboutot. The late Anne M. Pistorio was a plaintiff in the original case.