The Commercial Wharf East Condominium Association (CWECA) received a favorable ruling from the Massachusetts Appeals Court on July 31, 2020 in its fight against the State Department of Environmental Protection’s (DEP). The court affirmed a Superior Court ruling that the DEP’s determination process was flawed regarding the need for a Chapter 91 license at Commercial Wharf.
The Commercial wharf condo owners have long argued that the DEP process was misintentioned, having been initiated by Boston Boat Basin in 2011. Boston Boat Basin is known today as Boston Yacht Haven, now largely owned by the Tavistock Corp (Joe’s American Bar & Grill, Abe & Louie’s).
The DEP ordered in 2013 that Commercial Wharf should be required to obtain a Chapter 91 license as a result of a change from commercial to residential use units. Such an application process could revert units back to commercial, legally threaten existing deeds, potentially displace residents, and initiate a negotiation with the State regarding ground-level public tideland uses and access across the wharf, including the parking area.
The appeals court agreed with the condo owners because the individual condo units were not notified, nor even identified in the State’s determination, only the condo association.
“… the owners of units in the condominium were entitled to notice of Boston Boat’s RDA … by virtue of their status as landowners of the project site.”
“… individual unit owners were unable to determine whether their
particular rights in their unit would be affected by the proceeding.”
“The RDA, and the department’s review of it, was fundamentally procedurally flawed from its inception.”Read the full Mass. Appeals Court ruling here (pdf)
How did this predicament come to be? As one of the oldest of Boston’s waterfront properties, the condo association at Commercial Wharf maintains it has grandfathered Chapter 91 “mixed use” status, commercial and residential, under the auspices of the Boston Redevelopment Authority’s “urban renewal” designations from the 1950s and 1960s.
In 2004, a private developer bought up 12 units and converted them from commercial to residential. These were part of what Boston Yacht Haven claimed were 36 total units changed to residential in its initial 2011 request for determination. The condo association argued that the DEP issued a ‘minor modification’ for the 12 units finding this was an insignificant deviation and it was permitted. The deeds for these units were then changed so they could only be used as residential units going forward.
The DEP says in court documents that the prior “minor modification” is non-binding and was part of a larger change in use. As such, it currently intends to enforce Chapter 91 licensing regulations at Commercial Wharf, which would negate the property’s grandfathered status and start a negotiation regarding use and access throughout the entire wharf. In a separate lawsuit, the DEP and condo are in a dispute over parking rights.
While the legislation and related lawsuits are pending, Tavistock has introduced its proposal to redevelop Joe’s, the burned commercial buildings and south Harborwalk at Commercial Wharf.
Should the appeals court ruling stand, the proposed legislation sponsored by State Rep. Aaron Michlewitz would likely no longer be necessary to similarly avoid Commercial Wharf from having to apply for a Chapter 91 license. Boston Harbor Now and the Conservation Law Foundation, private non-profits that advocate for the harbor’s public use, have argued against the bill on grounds that the Chapter 91 exemption would set a bad precedent and weaken DEP’s authority to enforce public access on the waterfront. In December 2019, the CWECA separately proposed a new Harborwalk on the southside of the property, in an effort to increase public access to Commercial Wharf.