If you think land use is simple, read Beverly Port Marina, Inc. v. Department of Environmental Protection — not just the recent Appeals Court decision but the underlying agency decision.  What’s so difficult?  Begin with a smorgasbord of government laws and programs:  Chapter 91, the Coastal Zone Management Plan, procurement law, the urban self-help program, Article 97 of the Massachusetts Constitution.  After you’ve had your fill, throw in the dessert:  capitalism.  At its heart, Beverly Port Marina concerns the extent to which governmental programs (not just one, but many) determine which development proposals stay on the serving table, and which go in the garbage can.I'll drink to that.jpg 

The setting is Glover’s Wharf in Beverly.  Glover’s Wharf lies within a Designated Port Area (DPA) established in 1978.  It also lies seaward of the historic high water mark.  In other words, it’s within the jurisdiction of Chapter 91, the Public Waterfront Act.  In 1996, the city, aided by a grant from the Division of Conservation Services (DCS) urban self-help program, bought Glover’s Wharf.  The grant required the city to execute a project agreement with DCS.  The agreement described the city’s plan to lease a building for use as a restaurant, to maintain public boat slips, and to provide public parking.  The agreement acknowledged that the land was subject to Article 97, which requires a two-thirds vote of the Legislature before lands acquired for park (or similar) purposes can be put to a different use.

In 2006, the city issued a Request for Proposals (RFP) pursuant to the procurement law, M.G.L. c. 30B.  The RFP sought proposals for a 20- to 40-year ground lease to redevelop Glover’s Wharf for restaurant and conservation/recreation uses.  The “Black Cow” restaurant chain proposed a 40-year ground lease for a two-story building with a 362-seat restaurant, as well as parking for the restaurant and existing marina slips.  It also suggested that the DPA be rescinded.  The city went with the Black Cow proposal and, within two years, applied to the state Department of Environmental Protection (DEP) for Chapter 91 license. Instead of trying to rescind the DPA, the city proposed water-dependent industrial uses, including commercial passenger vessel service, for the first floor of the proposed building.

In response to the Chapter 91 application, Beverly Port Marina, Inc. (BPM) proposed a “competing project” pursuant to 310 CMR 9.36(5)(a).  That regulation prevents DEP from licensing nonwater-dependent or non-industrial uses within a DPA where it determines that the tidelands “are necessary to accommodate a competing party who intends to develop such tidelands” for water-dependent industrial use.  The competing party must show that its project promotes water-dependent-industrial use to a greater degree than the project proposed in the license application; must prepare development plans for its project, including a feasibility study; and must offer to purchase title or other rights to the tidelands in question at fair market value.  BPM’s proposal was for a 40-year ground lease that would net the city $400,000 over the Black Cow proposal.  It would use the land for a boatyard, boat repairs, and recreational uses in the existing building, and would use of the adjacent pier for commercial fishing, a research vessel, and recreational boating.

DEP granted the city a Chapter 91 license for the Black Cow proposal.  BPM appealed.  On appeal, DEP’s regional office changed its tune in favor of BPM.  Nonetheless, DEP’s presiding officer, and ultimately its commissioner, granted the city a license for the Black Cow proposal on grounds that BPM did not show that its proposal was feasible because it did not or could not meet various governmental requirements — namely, it did not show (adequately) that its proposal was allowed under DCS’s project agreement, that the city would lease the land to BPM, or that the project satisfied Article 97.  The superior court upheld DEP’s decision.  The Appeals Court did not.

In reaching its contrary conclusion, the Appeals Court breathed life into an oft-cited but usually ineffectual principle:  although an agency is owed deference, a court must not abdicate its responsibility to determine the meaning of a regulation as a matter of law.  The court held that the “competing project” regulation does not require a proponent to establish conclusively that it will obtain all permits and approvals for its project.  But the court went one step further.  It noted that DEP’s review of a Chapter 91 license application “ought not inquire into the applicant’s acquisition of other permits necessary for the project.”  Logically, the same could be said about any review by a permitting agency.

In a free-market economy, government should not determine which projects succeed and which fail.  Of course, in some ways government does this all the time.  A decision to grant or deny a permit determines if a project succeeds or fails.  So do decisions to provide (or not provide) subsidies like tax credits, grants, and so on.  But the Beverly Port Marina situation is different.  If DEP’s decision were upheld, it would have set a precedent whereby one government agency could base its permitting decision on what it thinks another government agency would do.  Whatever deference is owed to an agency, it does not extend to reading tea leaves or divining the meaning of cracks in a tortoise shell. As for Article 97 or any other legislative act, the Fates themselves cannot foretell what the Legislature will do.


Continue Reading

roadblock

Earlier this month the Supreme Judicial Court (SJC) issued an important decision in the case of Martin v. Simmons Properties, LLC.  Mr. Martin holds an easement over the land of the defendant, Simmons.  Simmons had blocked part of Martin’s easement.

Land in Massachusetts can be registered or unregistered.  Registered land has some special protections not afforded to

For three years we’ve been following the saga of 81 Spooner Road, the Brookline property at the center of a contentious zoning dispute and, more recently, an arson investigation.  See our original post here, and our follow-ups here, here and here.  Now, a trio of Northeastern University journalism students under the supervision of their professor – former Boston

The Supreme Judicial Court (SJC) yesterday issued its decision in the closely-watched case of DeWolfe v. Hingham Centre, Ltd.  The SJC has concluded that a broker can be liable for a written misrepresentation regarding zoning, despite languageshear negligence? in a commonly-used form purchase and sale agreement that some thought protected the broker from such liability.  We discussed the Appeals Court’s

Should the Red Sox start Jackie Bradley, Jr. in left?  I don’t know.  But I do know that the Boston Bar Association’s Land Use and Development Committee, co-chaired by my colleague and fellow MLUM contributor Johanna Schneider, is co-sponsoring two lunch programs of interest to land use lawyers.  The first program, scheduled for April Fool’s

On Valentine’s Day, the Boston Bar Association’s Land Use & Development Committee, co-chaired by my Rackemann colleague and fellow blogger Johanna Schneider, will host a lunch meeting to discuss recent developments in the law of standing.  The meeting will feature guest speakers Adam Cederbaum of the City of Boston’s Office of Corporation Counsel and noted land use attorney

Looks like its last closing will be its own.  We’ve just learned that National Real Estate Information Services, Inc. (NREIS), a Pennsylvania company that once provided “real estate settlement services” (i.e. real estate closings with little or no attorney involvement) is closing its doors.  NREIS is the defendant in a long-running lawsuit brought by the Real Estate Bar Association

On Tuesday, October 30, 2012, my colleagues and follow MLUM authors Gareth Orsmond and Michael Parker will be presiding over the next session of MCLE’s five-week “BasicsPlus” series on Commercial Real Estate.  Gareth and Michael will be covering zoning, subdivision control, and environmental site assessments.  The session runs from 8:30 a.m. to 10:30 a.m. and takes place

My colleague and fellow MLUM author Michael Parker will be one of the featured panelists at a Massachusetts Continuing Legal Education (MCLE) seminar next Wednesday, October 24, 2012.  The seminar is entitled Environmental Law: MCLE BasicsPlus, and will provide an “essential overview for environmental lawyers and non-specialists.”  Michael’s topic will be effective advocacy in MassDEP administrative appeals.  The seminar runs from 9:00

The Supreme Judicial Court (SJC) recently released its FY 2011 “Annual Report on the State of the Massachusetts Court System,” a copy of which is here (pdf).  The report is chock full of information – some of it pretty depressing – about the current condition of our court system, which remains woefully underfunded.  This lack of funding has resulted in a loss of over 1,000