Long Wharf Legal Update: City and State Authorities File Reply Briefs

The battle lines continue to form over the fate of the Long Wharf Pavilion and the open space around it at the end of the historic wharf. On September 20, 2012, the latest reply briefs to the Supreme Judicial Court were filed by the Boston Redevelopment Authority and the State’s Department of Environmental Protection.

The dispute began in 2007 when the Boston Redevelopment Authority announced a lease to “Doc’s Long Wharf” for an enclosed 4,655 square-foot waterfront restaurant with outdoor cafe tables. The BRA was granted a license by the State’s Department of Environmental Protection under Chapter 91 laws.

Ten North End residents took objection and in June 2012, the Superior Court agreed with their argument that the BRA-owned space on Long Wharf is “public waterfront parkland” and therefore protected by State law Article 97 which states that “agencies shall not change the control or use of any right or interest in Article 97 land” without approval by the State Legislature. Read more about the North End Ten position at SaveLongWharfPark.org.

The BRA and DEP immediately appealed the Superior Court ruling and the Supreme Judicial Court has taken it up as the highest court in the State.

In anticipation of the SJC oral arguments later this year, initial briefs were filed by both sides (See Long Wharf “Park” Briefs Filed at SJC Pitting BRA & DEP Against “North End Ten”). Also posted were two commentaries by North End Ten (#1 here and #2 here) and a supporting Amicus Brief by the Sierra Club.

In response, the BRA and DEP submitted two reply briefs last week on September 20, 2012.

Boston Redevelopment Authority made three arguments in its reply brief, summarized below:

I. An eminent domain taking under M.G.L. Chapter 121B must be strictly construed as granting only the rights necessary to accomplish the goals of urban renewal.

In summary, there is nothing in the text of M.G.L. ch. 121B which states that the BRA may take for conservation or environmental purposes, and the Court may not imply this language. Therefore the BRA does not have the power to take land for Article 97 purposes.

II. An urban renewal plan may create parks and open spaces to eliminate blight, but these incidental uses are not covered by Article 97.

The BRA is not arguing that the urban renewal statue trumps the state constitution, as Resident Appellees contend. … Rather, by its plain language, Article 97 only protects land “taken or acquired” for environmental or conservation purposes, and subsequent use of land as park or open space cannot change the statutory purpose of the taking.

III. The prior public use doctrine is not applicable to Long Wharf, as the parcel was blighted prior to the taking and Long Wharf has never been devoted to public use.

In this case, it cannot be disputed that Long Wharf was NOT a park before the BRA took it by eminent domain. It was a working fish wharf covered with warehouses in the early part of the twentieth century which had fallen into disuse and deteriorated by the 1950s. … The BRA’s urban renewal efforts, …, transformed Long Wharf over the past four decades from a dilapidated pier to a vibrant marina and pedestrian destination on Boston’s waterfront. … The Long Wharf Pavilion at issue in this case,  … remains subject to the 1964 Urban Renewal Plan. Accordingly, the use of the Long Wharf Pavilion may be modified depending on what is needed to eliminate blight and prevent its recurrence.

CONCLUSION

This court should determine that the Long Wharf Pavilion is not subject to Article 97. The inescapable conclusion of black letter law regarding eminent domain and statutory construction is that M.G.L. ch 121B does not confer upon the BRA the authority to effectuate an Article 97 taking. The BRA’s eminent domain power derives only from M.G.L. ch 121B SS 11, 45 and, regardless of the use to which the land is later put under an urban renewal plan, such land is not within the scope of Article 97. The doctrine of prior public use has no applicability to Long Wharf Pavilion because the parcel was blighted before the BRA’s eminent domain taking and it was never devoted to one public use after the taking.

Read the full BRA’s reply brief (pdf)

The introductory argument in the DEP reply brief is excerpted below:

The Department of Environmental Protection (DEP) submits this reply brief to address Appellees’ argument that the license it issued to the Boston Redevelopment Authority (BRA) disposes or changes the use of BRA’s land under Article 97 because the license is a mortgageable interest, is recordable, and runs with the land. … The Court should not consider this argument because Appellees did not make it below. Nor did Judge Fahey rely on such reasoning to reach her conclusions of law. … In any event, this new argument does not provide an alternative reason to affirm Judge Fahey’s decision.

Second, Appellees wrongly argue that they had no remedy other than invalidation of the license through a writ of mandamus. According to the cases they cite, an action for mandamus relief may lie once BRA enters its lease with the restaurant operator or takes affirmative steps to start the work. Appellees’ attempts to justify the issuance of mandamus against DEP here based on the mere issuance of a license fall short. DEP, acting in its regulatory capacity, has no independent obligation to seek Legislative approval before issuing a license. A contrary conclusion makes no practical or procedural sense.

Read the full DEP’s reply brief (pdf)