Judge Linda Giles described the case as “important, complex” and even “fascinating” in a July 23rd hearing at Superior Court. Who knew a parking dispute could be so intriguing? But then, this involves Commercial Wharf, one of the most litigated properties in downtown Boston through a series of cases ongoing for more than 30 years. It also raises questions about the State’s Chapter 91 license requirements for properties, like Commercial Wharf, built over Commonwealth tidelands but developed under special legislative acts of the 1960s/1970s urban renewal program that granted broad power to the city’s Boston Redevelopment Authority.
In this latest chapter of the legal saga, oral arguments were heard over parking rights on the wharf property as part of cross-pleadings by attorneys representing Commercial Wharf East Condominium Association (CWECA) versus those from the State’s Attorney General’s office representing the regulatory arm at Mass. Department of Environmental Protection (DEP). Another interested party, not directly named in this case, is the marina property, known as Yacht Haven (or Boston Boat in court documents). Other property owners on the wharf include the Sail Loft and most recently, Tavistock Corp., proprietor of Joe’s American Bar & Grill, and new owner of the burned out commercial properties that it intends to redevelop.
There are roughly two dozen parking spots at issue in this case, only a fraction of those on the property. CWECA, the condo association, controls most of the parking under the wharf’s master deed and the spaces are used primarily for residential unit owners of the large granite building at Commercial Wharf. The deed describes a daisy chain allocation for the condo, the marina and other owners at the property. Roughly a decade ago, the priority rights of the condo were challenged by Yacht Haven (Boston Boat) that was looking to expand at the time.
The Attorney General’s interest is arguing the State’s authority to issue and enforce Chapter 91 licenses, absent at Commercial Wharf. Built as part of the waterfront’s urban renewal, the condo association (CWECA) is relying on the 1964 (and subsequently 1974) Special Acts of the Massachusetts legislature that prompted the BRA’s redevelopment of the property and on which the existing deeds were created, including parking rights.
CWECA maintains the urban renewal legislation is “equivalent” to a modern Chapter 91 license. For the DEP, Asst. Attorney General Scholfield said that the special acts of the legislature only gave the BRA veto authority over DEP’s Chapter 91 licenses, not the ability to issue them.
The parking issue is running parallel to a related appeals case regarding a DEP ruling that could force conversion of two dozen residential units back to commercial use and potentially evict currently deeded residents. In an effort to preempt that, recently introduced legislation by State Rep. Aaron Michlewitz would effectively codify the urban renewal argument and provide the condo association with a grandfathered Ch. 91 license.
In June 2013, the State DEP said a new Chapter 91 license is necessary at Commercial Wharf. The DEP 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. The Commercial Wharf Condominium Association has argued in a letter against the licensing requirement because the DEP already reviewed the “commercial to residential” conversion issue in 2004 and previously made a determination.
Judge Giles acknowledged the overwhelming complexity of the case but gave little hint toward leaning one way or another in the courtroom filled with several observers. Notably, however, Giles has previously ruled in a separate issue that a Chapter 91 license was required “to protect the public’s rights” for the abutting Sail Loft building in a case involving the DeNormadie companies. After documents were introduced regarding past judgements on the property, the hearing ended with the judge taking the case under advisement.
It is not clear what would happen with the parking spots should the judge rule in favor of DEP. There was no mention of the unfinished Harborwalk at Commercial Wharf, a sticking point that also goes back decades between the various property owners.