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Commercial Wharf Ch. 91 Exemption Would Grandfather Mixed Use & Parking Rights

Commercial Wharf and Yacht Haven – photo

The battle at Commercial Wharf for access, use and parking rights continues on the North End waterfront. Negotiations and lawsuits have been ongoing for several years between the Commercial Wharf East Condo Association (CWECA), the State’s Department of Environmental Protection (DEP) [represented by the Attorney General’s office] and Boston Yacht Haven that operates a marina at the end of the wharf.

In the latest news, State Rep. Aaron Michlewitz (D-North End) has filed bill H.4505, An Act authorizing Commercial Wharf East Condominium Association under the Tidelands Public Trust Doctrine and preventing residents from being forced to leave. Supported by the CWECA, the bill would essentially grandfather “the granite building on Commercial Wharf into a mixed-use condominium facility that permits the first and second floors of the condominium building to be used interchangeably as facilities of private tenancy for residential or office/commercial use and the remainder of the building to be used as residences, together with all ancillary uses including private parking as established under the Urban Renewal Plan … and the public purpose is hereby recognized, as proper under Chapter 91 of the Massachusetts General Laws.”

Commercial Wharf East (NEWF Photo)

With only a few days left in the legislative session, the bill’s chances of passing are slim but Rep. Michlewitz said he hopes it could be a catalyst to “bring together the various interests to reach what has been so far, an elusive compromise.” Along with resolving the uncertainty for residents at Commercial Wharf, all the parties say they support a real Harborwalk at the site, connecting Christopher Columbus Park and along the parking lot between Joe’s American Bar & Grill and Boston Yacht Haven.

Boston Harbor Now and the Conservation Law Foundation, both private non-profits that advocate for the harbor’s public use, are actively lobbying against the bill because of the general precedent it could set to weaken Chapter 91. In its opposition letter (pdf), BHN writes, “We appreciate that Commercial Wharf East Condominiums, the owner of the property that is the subject of House Bill 4505, might prefer otherwise but site-specific legislative exemptions to the rules would have catastrophic consequences for the public’s rights and the orderly development of the waterfront.” In a blog post, the CLF takes a similar stance noting, “the bill will legislatively authorize the existing residential, commercial, and parking uses on the site and prevent MassDEP from requiring the property to comply with Chapter 91 public access requirements. This is a terrible precedent.” 

In June 2013, the State DEP ruled that a new Chapter 91 license is necessary at Commercial Wharf after it made a made a “positive” determination that “changes in use from commercial to residential in thirty-six (36) units subsequent to January 1, 1984″… “require a Departmental authorization in the form of a license” (View PDF of the DEP Determination of Applicability). At the time, the ruling was a significant win for Boston Boat Basin, LLC, owners of Boston Yacht Haven marina, who brought the case with Fort Point Associates against the condominium association at Commercial Wharf. In its filing, Boston Boat Basin LLC challenged the Commercial Wharf East building (84 Atlantic Avenue) and its compliance with Chapter 91 regulations. Starting a new license process could also bring into question deed restrictions on the marina owner that regulate parking and prohibit some uses (i.e., function hall social events, party cruises, etc.). In a separate lawsuit, an Appeals Court recently ruled in support of the deed restrictions saying that “Boston Boat had no authority in the first place to seek judicial enforcement of public trust rights in private litigation.”

As part of its Ch. 91 licensing, the DEP and AG could force 1st and 2nd level residential units to revert back to commercial use (hence, the “forced to leave” concern). Under Chapter 91, ground floor units are intended for public accommodation. Rep. Michlewitz’s proposed legislation could thwart DEP regulatory action for a new Chapter 91 license and is at odds with the Mass. AG’s lawsuit against the condo association.

Commercial Wharf condo association (CWECA) makes the case that the 1960s City of Boston Urban Renewal Plan already allows its “mixed use” similar to other waterfront properties. Further, a subsequent 2004 “minor modification” ruling by the DEP specifically permitted the unit conversions to residential without requiring a formal change of use. At the time, the DEP supported developer Doug Freeman’s efforts to rehab 12 units that were subsequently sold to residential tenants. The CWECA notes that the new unit owners relied on the DEP “minor modification” ruling to make their condo purchases. [There is a side story here as the developer was supposed to post $165,000 for a Harborwalk that never happened. The money trail has long gone cold along with Freeman. At the time, the condo association agreed to cede 4 feet width along its parking lot that was supposed to be joined with 6 feet of watersheet rights. But, the latter was never obtained by DEP and those rights are now held by the marina and others at the site.]

Highlighted is a proposed Harborwalk plan put forward by the Commercial Wharf East Condo Association.

Chapter 91 Waterways licenses “protect and promote the public interest in water bodies by ensuring that proposed projects and activities do not unreasonably interfere with navigation and the rights of the public or adjacent waterfront property owners; protect water-dependent uses and serve a proper public purpose,” according to the DEP.

Currently not involved in the negotiations is the newest property owner at Commercial Wharf, Tavistock Group, that recently acquired the 2-story burned out buildings, 16,000 square feet, for $10 million. Tavistock is the longtime owner of Joe’s American Bar & Grill adjacent to Christopher Columbus Park as well as Abe & Louie’s in Boston’s Back Bay. A redevelopment plan is expected in the near future for the property that could also include a future Harborwalk.

6 Replies to “Commercial Wharf Ch. 91 Exemption Would Grandfather Mixed Use & Parking Rights

  1. As I understand this:

    CWECA converted 36 1st and 2nd floor units to residential.
    12 of those units were approved by the DEP and Chapter 91 contingent on CWECA:
    Providing one ground floor unit as a Facility of Public Accommodation
    Constructing a 260 foot harborwalk on the south side
    CWECA failed to provide either of those requirements.
    In addition, CWECA converted an additional 24 units from commercial to residential in violation of Chapter 91.

    CWECA has been in violation of Chapter 91 since 2004, has refused to comply with the provisions set forth after converting 12 units, converted an additional 24 units without authorization, and now seeks to indemnify themselves from these violation through legislation which will set a precedent for all of our tidelands. 👍

    Seriously, correct me if I’m wrong, but it seems to me that CWECA have been particularly hostile neighbors.

  2. This is also the first I’ve heard about the possibility of residents being forced to leave (but it makes sense given the title of the bill). Is that a real possibility? Is there published comment from the DEP on the matter or a precedent?

    1. Hi Adam, Thanks for your comments, astute as always. I do not know how a forced conversion back to commercial would work, nor am I aware of a precedent. The existing condition of occupied residential units presents an obvious problem. There are, however, several older buildings (in the NE and elsewhere including some that came to be under the same Urban Renewal Plans of the ’60s and ’70s) that have received Chapter 91 licenses where mixed use conversions are permitted without a zoning change of use. However, the cited 36 conversions in the 2013 redetermination by the DEP is specific to this case at Commercial Wharf. BTW, I believe there is already a unit of public accommodation (a salon, perhaps?).

      With this post, I wanted to get out the news of the bill which has received very little press and provide some interpretation/background. While I spoke with several parties, I am not privy to the discussions related to the lawsuit between the DEP/AG and CWECA. Anyone that has followed this situation knows there are many nuances. For example, the Harborwalk that was part of the previous agreement included watersheet rights that have since changed hands.

      Another party also emailed me to emphasize that these discussions have been going on for over 10 years and that the Harborwalk on the North (Sail Loft) side also remains incomplete and could also be required under a new Ch. 91 license. Older properties have also been required to mitigate existing conditions by adding new parks, open spaces, restrooms, benches, interpretive signage among the many amenities you see along the Harborwalk.

  3. Adam, you are confusing CWECA (Commercial Wharf East Condo Association) with Commercial Wharf East Property, LLC which was the LLC set up by developer Doug Freeman who converted the 12 units from commercial to residential in 2004. Freeman is not part of CWECA. Developer Freeman was supposed to put $165K in escrow to build the south side harbor walk. The developer never put any of this money in escrow and the DEP was negligent in holding him accountable to this requirement. In addition, there were not 24 additional units converted after 2004. There is an assertion made by the DEP that 36 units have been converted but they are unable to identify the units they are referring to.

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