The “Pinnacle” of Waterfront Development and its Impact on Waterfront Zoning and Development

The “Pinnacle” of Waterfront Development and its Impact on Waterfront Zoning and Development

In Massachusetts, waterfront property is a special form of property with unusual value. As such, an owner of waterfront property typically holds title to the low water mark, but the owner cannot interfere with the “public trust” rights for certain projects without first obtaining a special license to do so issued by the Department of Environmental Protection (“DEP”) pursuant to G.L. c. 91. In a recent summary judgment decision by the Suffolk Superior Court in the case Harbor Towers II Condominium Trust v. Executive Office of Energy and Environmental Affairs, 2021 WL 1426897 (2021) (“Harbor Towers”) the dirty water just became murkier concerning which regulatory agency has the proper authority to regulate the development of the tidelands – DEP or the Executive Office of Energy and Environmental Affairs (“EEA”) – and its effect on waterfront development throughout the Commonwealth.

The Harbor Towers decision, while continuing to protect and preserve the public trust doctrine, effectively invalidated Boston’s waterfront zoning plan and created questions of validity of numerous waterfront projects throughout the Commonwealth that were issued licenses under the Waterways Regulations based upon previously approved municipal harbor plans.

Massachusetts is home to the oldest waterfront protection laws in the nation. The purpose of G.L. c. 91 is to protect the public’s use of inland and coastal waterways and to provide for the public’s access to the tidelands for fishing, fowling and navigation (the “Waterways Act”). In enacting the Waterways Act, the Massachusetts Legislature delegated the authority and obligation to protect the public trust and to protect the public’s interest to the DEP. In order to obtain a license to construct on the tidelands, the proposed buildings or structures must comply with certain minimum requirements, including but not limited to applicable height limits and open space minimums (the “Waterways Regulations,” 310 CMR § 9.01).

In 1990, the DEP and the EEA created a process for cities and towns to work with the Commonwealth to establish municipal harbor plans for specific waterfront areas (“MHP Regulations,” 301 CMR §23.00). The process involves the city or town’s development of a municipal harbor plan, which it then submits to the EEA for approval. These regulations were created to carry out the statutory obligation and protect the public trust land, but allowed development projects, which deviated from the Waterways Act and Waterways Regulations, so long as it served a public purpose and accounted for public access. Many of the major port cities in Massachusetts, which include Boston, Gloucester, Salem, and New Bedford, have completed state-approved municipal harbor plans. Since the passage of these regulations, the EEA Secretary has approved seventeen (17) projects on Boston Harbor, one of which is “The Pinnacle at Central Wharf,” which is the subject of the Harbor Tower decision.

The Pinnacle development calls for a massive 600-foot, 865,000 square foot mixed-use tower on the site of the current Boston Harbor Garage. After many years of study and public meetings, the Pinnacle obtained approval from the DEP and the EEA Secretary to build its skyscraper on the water’s edge. This approval singled out the Pinnacle development for an “alternative” height limitation of 600 feet, which “is approximately eleven times the standard 55 foot height limit set out in [the Waterway Regulations].” After receiving approval, however, in 2018, the Conservation Law Foundation and the Harbor Towers II Condominium Trust, the organization of unit owners of a condominium neighboring the proposed tower, brought lawsuits opposing the proposed “Pinnacle” development.1 The primary arguments concerned, not only environmental impacts of a skyscraper on the water’s edge, but also the unit owners’ parking rights in the Boston Harbor Garage and their views of Boston Harbor. In doing so, the Plaintiffs also challenged the validity of DEP’s Waterways Regulations and the MHP Regulations and, more specifically, the DEP’s ability to delegate authority to the EEA Secretary to make binding determinations on material aspects of tidelands projects through approval of the municipal harbor plans.

On April 1, 2021, the Superior Court issued a decision on the parties’ cross-motions for summary judgment, which concerned, not the project itself, but the DEP’s and the EEA’s approval of the Boston Waterfront MHP. The Plaintiffs argued that certain portions of the Waterways Regulations and the MHP Regulations are invalid and ultra vires because the DEP unlawfully delegated its authority to the EEA Secretary. Following the Court’s review of the legislative intent and history, it held that the DEP cannot delegate authority to the EEA Secretary, which it did through the creation of the Waterway Regulations and the MHP Regulations. In rendering its decision, the Court noted that local planning boards and the EEA Secretary may only provide input and advice to the DEP.

The Harbor Towers decision, while continuing to protect and preserve the public trust doctrine, effectively invalidated Boston’s waterfront zoning plan and created questions of validity of numerous waterfront projects throughout the Commonwealth that were issued licenses under the Waterways Regulations based upon previously approved municipal harbor plans.

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Meghan E. Hall