On July 12th, the Supreme Judicial Court issued a major ruling behalf of the Harbor Towers Condominium in its challenge to a proposed
The case, Armstrong v.
Secretary of Energy and Environmental Affairs, stems from a proposal by the
owner of the Harbor Garage in downtown Boston to demolish the garage and
replace it with a 600-foot, 900,000 square foot mixed-use office and
residential tower. The property abuts Boston Harbor, and therefore is subject
to special state rules on development in the “tidelands.”
Under centuries of common
law, the Massachusetts legislature holds the sovereign power to protect the
public’s right of access to the tidelands. Since 1866, the legislature has
delegated that power to various public bodies, most recently the Department of
Environmental Protection (“DEP”). In Chapter 91 of the General Laws, the
legislature directed that any development in the tidelands must have a license
from DEP. Under the statute, DEP can only issue a license if it determines that
the project serves a “proper public purpose,” and that the project’s benefits
to the public’s rights in the tidelands outweigh its detriments.
To preserve public
access, DEP duly enacted regulations under Chapter 91 that limit the height and
massing of waterfront structures. Among other things, the regulations impose a
55-foot height limit on properties within 100 feet of the water, with the limit
stepping up with each additional foot inland. The regulations also require that
50% of any development parcel be devoted to open space. The intent of these
regulations is to ensure that developments are not too big or too intense to
accommodate “water dependent uses,” such as fishing and sailing.
However, in 1990, the DEP
delegated its authority to decide the height and massing of waterfront
developments to the Secretary of Energy and Environmental Affairs. Under the
1990 regulations, the Secretary could approve alternative height and massing
standards requested by a municipality and contained in a harbor-specific
“municipal harbor plan” (“MHP”). The regulations required DEP to apply the
Secretary’s substitute dimensional standards, rather than its own limits, in
any later licensing decision. Before approving an MHP, the Secretary was required
to determine that the substitute dimensional standards ensure sufficient public
access, and she could receive input from DEP. However, the Secretary, not DEP, had
final approval.
The Harbor Garage is
close to the water, so under the default DEP rules the developer’s proposed
tower would have been limited to 55-155 feet. To accommodate the planned tower,
the City of Boston asked the Secretary of Energy and Environmental Affairs to approve
a municipal harbor plan allowing a building envelope of up to 600 feet. In
April 2018, the Secretary approved the plan, finding that the 600-foot height
variance would preserve public access because other buildings in the “entire
City skyline” are similarly tall.
Concerned about the
detrimental impacts of the proposed tower on both the interests of its
residents and the public’s right of access to the water, Harbor Towers sued the
Secretary, the DEP, and the developer in the Suffolk Superior Court. Harbor
Towers was joined in a companion case by the Conservation Law Foundation. On
April 1, 2021, Judge Brian Davis of the Suffolk Superior Court struck down the
waterfront regulations as an invalid delegation of DEP’s authority.
On July 12, 2022, the Supreme
Judicial Court unanimously affirmed the Superior Court’s decision, holding that
the DEP’s delegation to the Secretary in the 1990 regulations was invalid.
Under centuries of common law, only the legislature itself or its “express”
designee may exercise the authority to protect this “special, unusually
valuable form of public property.” In Chapter 91, the legislature expressly
delegated that power to DEP, not the Secretary. The DEP “may not cede to the
Secretary the decision whether non-water-dependent uses of tidelands serve, inter
alia, a proper public purpose by binding itself to so find based on the
Secretary's decision to approve specifications in connection with an MHP.”
The SJC’s decision invalidates
a municipal harbor plan that would have produced a project vastly out of scale
with the neighborhood, with attendant detrimental public impacts on traffic and
wind conditions in the area. Practically speaking, as the court noted, the
decision is likely to affect only proposed projects that have not yet been
granted Chapter 91 licenses, because the statute of limitations to challenge a
Chapter 91 license is 30 days. The ruling therefore should not impact licenses
for structures already built under the authority of now-invalidated municipal
harbor plans.
In addition, the decision
presents an opportunity for a new public process to decide where to strike the
balance between development and the public interest. Harbor Towers has been working
closely with its neighbors, including the garage developer, on developing a
plan to address rising sea levels in the area. That important question should
be at the heart of any future waterfront planning initiative.
To access the
SJC’s Armstrong decision, click here
Jeffrey J. Pyle is a
partner at Prince Lobel Tye LLP. Along with Thomas M. Elcock, he represented
the Harbor Towers condominium trusts in the Armstrong case.
Jeff represents clients in a wide variety of cases, including First Amendment
litigation, multimillion dollar business disputes, libel claims, criminal
cases, and civil rights matters. Jeff’s
email address is jpyle@princelobel.com.
