Commercial Wharf E. Condo. Ass'n v. Dep't of Envtl. Prot.
| Decision Date | 07 July 2021 |
| Docket Number | No. 19-P-1676,19-P-1676 |
| Citation | 175 N.E.3d 391,99 Mass.App.Ct. 834 |
| Parties | COMMERCIAL WHARF EAST CONDOMINIUM ASSOCIATION v. DEPARTMENT OF ENVIRONMENTAL PROTECTION. |
| Court | Appeals Court of Massachusetts |
John M. Allen, Boston, for the plaintiff.
Seth Schofield, Assistant Attorney General, for the defendant.
Peter Shelley, Boston, for Conservation Law Foundation, amicus curiae, submitted a brief.
Present: Vuono, Meade, & Lemire, JJ.
For nearly half a century the owners of condominium units located within the five-story granite building that sits on Boston's historic Commercial Wharf have used approximately 12,000 square feet to the east of the building (disputed area) for vehicular access and private parking. The questions raised in this appeal are whether such uses are authorized, either by certain legislative acts or by license under G. L. c. 91 (c. 91 or Waterways Act), and whether the plaintiff, Commercial Wharf East Condominium Association (CWECA),1 was required to obtain a license under c. 91. For the reasons that follow, we conclude that the Department of Environmental Protection (department) properly determined that the uses are unauthorized and a license is required.2 Accordingly, we affirm the judgment of the Superior Court upholding the department's decision.3
Background.4 1. Construction and rehabilitation of Commercial Wharf. Commercial Wharf is located between Long and Lewis Wharves on Boston Harbor and has been in existence for almost 150 years. Boston's waterfront has a rich history, which we will touch on briefly to give context to our discussion.
In 1832, the Legislature authorized the Commercial Wharf Company to construct a wharf and "any buildings, ... docks, streets or passage ways ... according to their will and pleasure." St. 1832, c. 51, § 2. Thereafter, a wharf, a five-story granite building, and "streets and passageways" to the east of the building were constructed. Both the building and the "streets and passageways" are located at the landward end of the wharf, but seaward of the historic low water mark, in an area constituting "Commonwealth tidelands" under G. L. c. 91, § 1.5
For over a century, Commercial Wharf accommodated merchants from all over the world. However, by the middle of the twentieth century, maritime-related commerce had declined and much of Boston Harbor including Commercial Wharf became economically depressed. In 1964, an effort to revitalize Boston's waterfront emerged. To that end, the Boston Redevelopment Authority (BRA), the Boston city council, and the mayor of Boston formulated a plan, entitled the "Downtown Waterfront-Faneuil Hall Urban Renewal Plan" (renewal plan). The renewal plan provided in pertinent part that the granite building on Commercial Wharf would be used for "residential, office, general business and marine uses and landscaped open areas." The renewal plan required a minimum of one parking space "for each dwelling unit." "Open parking or loading areas [were required to be] paved and landscaped and effectively screened," and the "number of parking spaces" required the BRA's written consent.
Soon thereafter, the Legislature enacted c. 663 of the Acts of 1964 (1964 Act). The 1964 Act authorized the Department of Public Works (DPW)6 and the BRA "to exercise certain powers in regard to certain tidelands along the Atlantic Avenue and Commercial Street waterfront in the city of Boston." As relevant here, the 1964 Act granted "all right, title and interest of the [C]ommonwealth in and to the tidelands" within the Boston waterfront area, including Commercial Wharf, to the BRA. St. 1964, c. 663, § 2. The 1964 Act also established a modified licensing procedure effective through 1971. Under that procedure, the DPW maintained its authority to issue waterways licenses "to fill or maintain fill or to erect or maintain a structure," but required that an application for a license be approved by the BRA.7 St. 1964, c. 663, § 3. Following the enactment of the 1964 Act, the trustees of Blue Water Trust (Blue Water Trust), the redeveloper of Commercial Wharf, purchased the wharf, including the area currently used for parking and vehicle access, from the BRA.
In 1972, the Legislature extended the 1964 Act's licensing procedure to 1977. Chapter 310 of the Acts of 1972 (1972 Act) provided that "no license to fill or maintain fill or to erect or maintain a structure in [the designated area including Commercial Wharf] shall be granted by [DPW] unless the application for a license is approved in writing by the [BRA] and the mayor of the city of Boston." St. 1972, c. 310, § 1. The 1972 Act further provided that, with respect to the work completed pursuant to the renewal plan, public pedestrian access must be provided to the "harbor ends" of the wharves.
In 1974, Blue Water Trust and the BRA entered into a rehabilitation agreement concerning the redevelopment of Commercial Wharf. The rehabilitation agreement provided that the premises to be redeveloped would be devoted "generally to residential, office, general business, marine, marina, restaurant and tavern uses as are not inconsistent with the general objectives of the [renewal plan] (it being hereby acknowledged that the present uses are not inconsistent with the general objectives of the [renewal plan])." The rehabilitation agreement specifically provided for the renovation of the existing granite building, and the related plans showed parking near the building. The rehabilitation agreement also included specific provisions to ensure public access on Commercial Wharf. In addition, the rehabilitation agreement stated that the BRA would "use its best efforts to assist [Blue Water Trust] in obtaining any and all licenses and permits as may be required" to complete the renovation work.
2. Changes to licensing requirements. The Waterways Act governs licensing of work on the tidelands. Historically, a license was required only for filling tidelands and constructing wharves and piers on them. See generally Trio Algarvio, Inc. v. Commissioner of Dep't of Envtl. Protection, 440 Mass. 94, 99-101, 795 N.E.2d 1148 (2003). Once filling and construction were complete, use of the fill or structures did not require a license. This changed after the Supreme Judicial Court issued its decision in Boston Waterfront Dev. Corp. v. Commonwealth, 378 Mass. 629, 393 N.E.2d 356 (1979).
In Boston Waterfront Dev. Corp., 378 Mass. at 649, 393 N.E.2d 356, the court defined the nature of the title held by wharfing statute beneficiaries and held that fee simple title to such land "is subject to th[e] same public trust on which the Commonwealth originally held it." "The essential import of this holding is that the land in question is not, like ordinary private land held in fee simple absolute, subject to development at the sole whim of the owner, but it is impressed with a public trust, which gives the public's representatives an interest and responsibility in its development." Id. Thus, legislatively granted fee simple title to tidelands is "subject to the condition subsequent that it be used for the public purpose for which" the legislative grant was made. Id.
The wharfing acts of the 1800s, like the one that authorized the construction of Commercial Wharf, served the public purpose of promoting maritime trade and commerce to benefit Boston Harbor. See Boston Waterfront Dev. Corp., 378 Mass. at 647-648, 393 N.E.2d 356. It follows that any use of Commercial Wharf must serve that original public purpose of promoting maritime trade and commerce unless the Legislature exercises its authority to change the public purpose for which a particular area may be used. See id. at 648-649, 393 N.E.2d 356. See also Opinion of the Justices, 383 Mass. 895, 905, 424 N.E.2d 1092 (1981).
In 1983, in response to Boston Waterfront Dev. Corp., the Legislature amended the Waterways Act to require licensing for certain uses of the tidelands. See Trio Algarvio, Inc., 440 Mass. at 106, 795 N.E.2d 1148 (). A new license is required for "[a]ny changes in use ... of a licensed structure or fill, whether said structure or fill first was licensed prior to or after the effective date of this section." G. L. c. 91, § 18. The Legislature made the department responsible for issuing such licenses, thereby entrusting the department with the authority to determine whether a particular use of tidelands is consistent with the public trust doctrine. See G. L. c. 91, § 2 ().
Thereafter, in 1990, the department changed its regulations to reflect its responsibility for licensing the tidelands for a particular use. See 310 Code Mass. Regs. §§ 9.01 - 9.56. The regulations that were adopted do not exempt existing unauthorized uses on Commonwealth tidelands. See 310 Code Mass. Regs. § 9.05(l) and (3). In other words, under current regulations, if the use at issue here -- parking and land-based vehicular movement on the disputed area -- is unauthorized, then a license is required. Because parking and land-based vehicular movement are nonwater-dependent uses, a license can be issued only if the department determines that the project serves a proper public purpose that provides "a greater public benefit than public detriment to the rights of the public" in the public trust lands. G. L. c. 91, § 18. See 310 Code Mass. Regs. § 9.31(2). See also 310 Code Mass. Regs. § 9.12 (determination of water-dependency).
3. The present controversy. CWECA is the organization of condominium unit owners at the Commercial Wharf East Condominium located in the granite building adjacent to the disputed area. On August 25, 2011, an abutter, the Boston Boat Basin, LLC (Boston Boat), which owns a marina and inn known as Boston Yacht...
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