Navy Yard Four Assocs., LLC v. Dep't of Envtl. Prot.

• Decision Date: 04 September 2015
• Docket Number: No. 14–P–607.,14–P–607.
• Citation: 37 N.E.3d 46,88 Mass.App.Ct. 213
• Parties: NAVY YARD FOUR ASSOCIATES, LLC v. DEPARTMENT OF ENVIRONMENTAL PROTECTION & another.
• Court: Appeals Court of Massachusetts

88 Mass.App.Ct. 213

37 N.E.3d 46

NAVY YARD FOUR ASSOCIATES, LLC

v.DEPARTMENT OF ENVIRONMENTAL PROTECTION & another.¹

No. 14–P–607.

Appeals Court of Massachusetts, Suffolk.

Submitted April 2, 2015.

Decided Sept. 4, 2015.

Donald R. Pinto, Jr., Boston, for the plaintiff.

Seth Schofield, Assistant Attorney General, for Department of Environmental Protection.

John A. Pike, for Conservation Law Foundation, amicus curiae, submitted a brief.

Present: KAFKER, C.J., KANTROWITZ, & HANLON, JJ.

Opinion

KAFKER

, C.J.

This appeal arises from a dispute over public accommodation requirements imposed within a waterways license issued by the Department of Environmental Protection (DEP) pursuant to G.L. c. 91 for property currently owned by the plaintiff, Navy Yard Four Associates, LLC (NYF). The property is an approximately 2.6–acre parcel of land in Charlestown abutting Boston Harbor. It is the site of a 224–unit apartment building development known as Harborview. DEP concluded in 2004 that the project was a nonwater-dependent use sited on filled “Commonwealth [t]idelands” and therefore special conditions were included as part of its waterways license to ensure that the project served a “proper public purpose.” One of these special conditions was that seventy-five percent of the ground floor of the building be reserved for facilities of public accommodation. In 2009, NYF sought to amend its license, particularly the public accommodation requirements, contending that (1) G.L. c. 91 limits “Commonwealth tidelands” to submerged lands and excludes the tidal flats on which this project is sited, and (2) “Commonwealth tidelands” do not include property owned by the Boston Redevelopment Authority, which owned the property at the time of permitting, or other such political subdivisions or quasi public agencies of the Commonwealth. DEP declined to grant the amendment, and NYF appealed DEP's decision to the Superior Court in accordance with G.L. c. 30A, § 14

, naming both DEP and the Commonwealth as defendants. The Superior Court affirmed DEP's denial of NYF's requested c. 91 license amendment and rejected NYF's request for a declaratory judgment invalidating DEP's relevant regulations defining “Commonwealth [t]idelands.” Based on the property's history, the applicable statutory and regulatory framework, and the public trust doctrine, we reach the same conclusions and therefore affirm the Superior Court amended judgment before us.

1. Background. From 1800 to 1979, NYF's property was part of a larger parcel owned by the Federal government, originally purchased to establish the Charlestown Navy Yard. See St. 1800,

c. 26 (May session). To that end, the United States government lawfully filled and constructed piers and buildings on the subject tidelands. After the closure of the shipyard, the Massachusetts Legislature, on July 22, 1978, passed a special Act (the Navy Yard Act) to facilitate the transfer of Navy Yard land to, in part, the Boston Redevelopment Authority (BRA). St. 1978, c. 556. The Federal government deeded a portion of the land, including what became NYF's property, to the BRA in May of 1979. Since that period, the BRA has redeveloped the area for multiple uses under licenses issued pursuant to c. 91, including marinas, condominiums, offices, and water transportation facilities.²

In March, 2003, LDA Acquisition, LLC (LDA), submitted a waterways license application for the property to DEP pursuant to G.L. c. 91 and its implementing regulations at 310 Code Mass. Regs. §§ 9.01 et seq.

(Waterways Regulations). At that time, the BRA still owned the property and LDA was its lessee. LDA's license application sought approval to build the Harborview project, as described above. On February 18, 2004, DEP issued its written determination on LDA's license application, wherein it approved LDA's proposed Harborview project. It determined the property to fall on “Commonwealth [t]idelands” as “the site is owned by the [BRA], a public agency.” It also determined that the project, as conditioned, complied with all applicable standards of the Waterways Regulations, including the special standards for nonwater-dependent use projects.

In January, 2005, Navy Yard Four Associates Limited Partnership notified DEP that it had taken over the project. On May 26, 2005, the BRA conveyed the property to Navy Yard Four Associates Limited Partnership. Thus, the waterways license issued on June 11, 2005, to Navy Yard Four Associates Limited Partnership rather than to LDA. In October, 2005, Navy Yard Four Associates Limited Partnership then conveyed the property to NYF, the plaintiff, for nominal consideration.³

In addition to approving NYF's plans to construct Harborview, the DEP license requires in pertinent part that “at least seventy-five percent of the ground floor of the building be maintained as Facilities of Public Accommodation [FPAs] as defined at 310 [Code Mass. Regs. § ] 9.02, including interior public pathways,

public restrooms, and pathways within the footprint of the building but open to the exterior.”⁴ This requirement stems from 310 Code Mass. Regs. § 9.53 (2000)

,⁵ which requires FPAs for all “nonwater-dependent use project[s] that include[ ] fill or structures on Commonwealth tidelands.”⁶ Between 2005 and 2007, NYF constructed Harborview, and as required by NYF's license, the ground floor of the Harborview building includes 32,225 square feet dedicated to FPAs. Beginning in 2006, NYF and its predecessors actively marketed the FPA space, but by late 2009 NYF had yet to find appropriate tenants.

In 2006, the Office of Coastal Zone Management and DEP completed the “Massachusetts Chapter 91 Mapping Project,” which established the presumptive historic high and low water marks along the Massachusetts shore for purposes of DEP's jurisdiction under c. 91. With the new information provided by the mapping project, it became clear that the entire footprint of the building lies between the historic high water mark and the historic low water mark.⁷

In September, 2009, NYF submitted an application to DEP to amend its waterways license, seeking (1) a reduction of the amount of floor area required to be used as FPAs from 32,225 square feet

to 12,570 square feet, and (2) approval for flexibility in where to locate the FPAs on the ground floor of the building. NYF's application noted that Harborview rested on filled “tidal flats”—the area between the historic high and low water marks—and argued that though the property was initially classified as “Commonwealth [t]idelands” due to the BRA's ownership, its classification should change given that NYF is a private entity.

Pursuant to its regulations, DEP reviewed NYF's application, held a public hearing, and considered the company's response to comments. On November 9, 2010, DEP issued a written determination denying the requested amendment. As stated in the determination's findings, this decision was based on the fact that when the original license was granted, the property was on previously filled “Commonwealth [t]idelands,” and that “[o]nce held by the Commonwealth, the type of tidelands can't be changed back without a specific act of the [L]egislature.”

On November 24, 2010, NYF requested an adjudicatory hearing before DEP to challenge the denial of its license amendment application. On cross motions for summary decision, the presiding officer issued a recommended final decision on November 21, 2011, affirming DEP's written determination, which the DEP Commissioner adopted in his final decision on November 22, 2011.

As a result, NYF filed a complaint in Superior Court seeking judicial review of DEP's final decision pursuant to G.L. c. 30A, § 14

, and a declaration that certain provisions of the Waterways Regulations are ultra vires.⁸ After holding a hearing on NYF's motions for judgment on the pleadings and for partial summary judgment, a judge denied the motions, affirming DEP's final decision and denying declaratory relief in a written memorandum of decision and order. NYF appeals from the resulting amended judgment.

2. Discussion. A. Public trust doctrine. NYF's claim implicates our public trust doctrine, and therefore, “[t]o resolve this dispute we must consider in historical perspective the allocation of rights among private parties, the Commonwealth, and the public to use, own and enjoy one of the Commonwealth's most precious natural

resources, its shore.” Boston Waterfront Dev. Corp. v. Commonwealth, 378 Mass. 629, 630, 393 N.E.2d 356 (1979)

(Boston Waterfront ). See Arno v. Commonwealth, 457 Mass. 434, 449, 931 N.E.2d 1 (2010) (“Throughout history, the shores of the sea have been recognized as a special form of property of unusual value; and therefore subject to different legal rules from those which apply to inland property”), quoting from Boston Waterfront, supra at 631, 393 N.E.2d 356.

Under common law, private ownership in coastal land could historically extend only landward of the mean high water mark. Arno v. Commonwealth, supra. Seaward of the high water mark, ownership remained with “the Crown [and eventually the Massachusetts Bay Colony, followed by the Commonwealth,] but subject to the rights of the public to use the coastal waters for fishing and navigation.” Ibid., quoting from Opinion of the Justices, 365 Mass. 681, 684, 313 N.E.2d 561 (1974)

. This changed, however, with the Colonial Ordinance of 1641–1647, which authorized the transfer of title to property between the high and low water marks—the tidal flats—to private parties, though this title has always had “strings attached.” Arno v. Commonwealth, 457 Mass. at 449, 931 N.E.2d 1, quoting from Boston Waterfront, 378 Mass. at 637, 393 N.E.2d 356. While “[g]reater public rights exist in submerged lands, the land lying seaward of the low water mark,” Arno v. Commonwealth, supra at 450, 931 N.E.2d 1, both tidal flats and submerged lands are referred to collectively as “tidelands,” id. at 436, 931 N.E.2d 1, and “[a]ll tidelands below [the...