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

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.”

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.]

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.