September 28, 2021

Volume XI, Number 271

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September 28, 2021

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September 27, 2021

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Fate of Municipal Harbor Plans Thrown Into Question

The Superior Court’s April 1, 2021 decision in Armstrong v. Theoharides (pdf) was no April Fool’s joke and could have far-reaching consequences for Massachusetts waterfront development.  In a case against the Secretary of Energy and Environmental Affairs (EEA) brought by the Conservation Law Foundation and residents of the Harbor Towers condominium complex in Boston, the court sided with the plaintiffs and found that the Secretary exceeded her authority in approving the Boston Downtown Waterfront District Municipal Harbor Plan (the Boston Waterfront MHP). That approval would have allowed the construction of a 600-foot-tall tower at the site of what is now the Aquarium Garage, as well as the development of the Hook Lobster site, both on Atlantic Avenue in Boston.

Municipal Harbor Plans (MHPs) are codified in EEA regulations at 301 CMR 23.00 et seq. (the MHP Regulations) and affect licensing by the Department of Environmental Protection (DEP) under the state’s Public Waterfront Act, M.G.L. c. 91 (Chapter 91), and its implementing regulations at 310 CMR 9.00 et seq. (the Chapter 91 Regulations). In order to obtain a license for structures to be built or modified on tidelands, such structures must comply with the applicable height limits, open space minimums, and other zoning-like requirements set forth in the Chapter 91 Regulations.  The MHP planning process allows for those rigid requirements to be varied or substituted for a particular waterfront area, taking into account municipal planning objectives for the area, rather than simply applying the zoning-like restrictions on a parcel-by-parcel basis. When issuing Chapter 91 licenses for waterfront parcels subject to an MHP, the Chapter 91 Regulations require DEP to take into account in its licensing decisions the variations or substitutions allowed by the MHP.

The requirements of the MHP Regulations are thorough and time- consuming, requiring public hearings and approvals by the municipality, the Massachusetts Office of Coastal Zone Management, DEP,  and finally, the Secretary of EEA.  And the Boston Waterfront MHP was no exception, entailing extensive public meetings and hearings at the local level through the Boston Planning & Development Agency, as well as at the state level, all as required by the MHP Regulations.

The Armstrong plaintiffs participated in the MHP planning process but were not happy with the height substitutions permitted in the approved MHP.  In court they argued that the legislature, in enacting Chapter 91, gave licensing authority in tidelands solely to DEP, and that such authority could not be varied by the Secretary of EEA. As the court noted, the provisions of Chapter 91 do not explicitly provide for MHPs. Given the public’s important rights in tidelands, the court relied on the Supreme Judicial Court’s 2007 decision in Moot v. Department of Environmental Protection to find that the MHP Regulations go beyond the authority that the legislature gave DEP under Chapter 91, and that any relinquishing of the public’s rights in tidelands must be done pursuant to explicit legislative authority granted to DEP. In short, the court ruled that the Secretary of EEA has no role in such decisions. The court therefore determined that the requirements in the Chapter 91 Regulations that DEP must follow and apply any substitutions allowed in an approved MHP are invalid. Thus, DEP could not be required to take into account any of the variations or substitutions approved through the Boston Waterfront MHP (such as the height of the proposed tower). As other commenters have noted, this case could have far-reaching consequences for the municipal harbor planning process and may impact Chapter 91 Licenses already granted by DEP based on previously-approved MHPs.

These consequences could be remedied by amending Chapter 91 to allow MHPs to vary the rigid requirements found in the Chapter 91 Regulations, but there is a bigger issue here as well: do such strict zoning-like requirements even belong in the Chapter 91 Regulations? Are the public’s rights in tidelands any more protected by limiting the height of a particular structure? Perhaps area-wide access to the water, more usable open space, and other public benefits and enhancements would better reflect the continuing rights of the public in tidelands in a particular area.

The zoning-like restrictions were first incorporated into the Chapter 91 Regulations in 1991.  At that time municipalities objected to them on the basis that such standards should be imposed by local zoning, since local zoning and planning processes better reflect the needs and wishes of a community. Rigid, generally-applicable requirements may not promote broader community concerns or account for areas along a waterfront that might benefit from better open space or other public enhancements. Such strict requirements are now coming into conflict with sea-level rise, sustainability, and coastal resiliency goals as well. It may be time to review both the municipal harbor planning process and Chapter 91 licensing in a more holistic way to better reflect climate change, public needs, and changes to waterfronts all along the Massachusetts coast.

©2021 Pierce Atwood LLP. All rights reserved.National Law Review, Volume XI, Number 110
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About this Author

Paula M. Devereaux Partner Boston Commercial Real Estate Law Real Estate Land Use Environmental
Partner

Paula Devereaux is an experienced commercial real estate and land use attorney, focusing her practice on development, zoning, permitting, planning, and environmental regulatory compliance. Paula serves as real estate counsel for a number of clients in the Greater Boston area, ranging from smaller organizations to large corporations, medical centers, retailers, and real estate firms. She regularly advises clients on Boston permitting matters, waterfront development issues, and in sales, acquisitions, and financings.

Paula is active in the real estate community, serving in leadership...

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