The Nickel Report

Waterfront development in Massachusetts has a new problem.  In particular, projects that rely on a municipality’s approved municipal harbor plan and a corresponding building height exemption from what the Massachusetts waterfront development law otherwise requires will likely be blocked, at least for now.  The impact is not limited to Boston, as municipal harbor plans reach deep into waterfront zoning and development statewide.

In the latest step attempting to resolve two separate actions involving a dispute over a proposed development on the City of Boston waterfront, a Massachusetts Superior Court judge recently held that the Commonwealth’s municipal harbor plan regulatory scheme was irreconcilable with the Commonwealth’s “Chapter 91” statute, which controls and dictates all development activity in and around tidelands of the Commonwealth.  The Court explained that it could find no discernable wiggle room in Chapter 91’s provisions for agency approvals for waterfront development projects, and in so doing struck down the applicable agency regulations.  While development project opponents have claimed victory, the timing of the case may also present a unique opportunity for the Commonwealth to revisit its statutory and/or regulatory regimes to align any proposed coastal waterfront developments for the impacts from climate change, including resiliency and adaption projects to address sea level rise on existing and new waterfront developments.  Accordingly, assuming the Court’s decision survives further appeal, savvy project proponents will want to participate in any statutory or regulatory processes that proffer a solution to the Court’s decision, but also any potential revisions to the Chapter 91 regime targeting climate change, in order to ensure that any such changes are achievable and will not mire projects in further litigation.

I. Background

This matter is comprised of two companion cases.  In the first, plaintiffs are members of a condominium community situated on Boston Harbor immediately adjacent to the Rose Kennedy Greenway.  In the second case, the plaintiffs are comprised of a non-governmental organization and a collection of its members.  The gravamen of the plaintiffs’ complaints center on the planned construction of a 600-foot-tall tower, which would be located on a downtown Boston waterfront site currently occupied by a parking garage.  The parking garage parcel is located on filled tidelands within 100 feet landward of the Boston Harbor high water mark.  The defendants include the parking garage owner, the Massachusetts Executive Office of Energy and Environmental Affairs (“EOEEA”), and the Massachusetts Department of Environmental Protection (“MassDEP”).

Setting aside particular nuances between the two actions, common to both was a critique of the City of Boston’s Municipal Harbor Plan (“MHP”) and more broadly the municipal harbor plan regulatory scheme set forth in the Commonwealth’s Waterways Regulations, 310 C.M.R. §§ 9.00 et seq. (“Waterways Regulations”), and the Commonwealths’ Review and Approval of Municipal Harbor Plans Regulations, 301 C.M.R. §§ 23.00, et seq.  Forefront to the plaintiffs’ concern was the way in which MassDEP’s Waterways Regulations purported to cede MassDEP’s authority to EOEEA to make licensing determinations for structures on tidelands, in the context of an approved MHP.

II. Statutory and Regulatory Provisions

Pursuant to MassDEP’s Waterways Regulations, tideland development for a structure that is “nonwater-dependent” (e.g., a residential/office building) is generally limited to no more than 55 in height within 100 feet of the shore, along with a permissible increase in height at a rate of ½ foot for every additional foot of separation from the high water mark. 310 C.M.R. § 9.51(3)(e).  Within the same provision, however, there is a height restriction exemption where a project conforms to a MHP approved by EOEEA, which contains alternative height limits and other requirements. See id (“…the [MassDEP]… shall waive such height limits if the project conforms to a municipal harbor plan which, as determined by the [EOEEA] Secretary in the approval of said plan, specifics alternative height limits and other requirements which ensure that, in general, such buildings for nonwater-dependent use will be relatively modest in size, in order that wind, shadow, and other conditions of the ground level environment will be conducive to water-dependent activity and public access associated therewith, as appropriate for the harbor in question;…[emphasis added]”).

As the Court explained, the City of Boston’s MHP was approved by EOEEA on April 30, 2018.  The MHP included an alternative height limitation for the waterfront parking garage parcel and the intended site of the tower.  The approved MHP afforded a 600 foot height limitation for the parcel, in lieu of the 55 foot limitation contained in the MassDEP’s Waterways Regulations.

The plaintiffs in both actions viewed this approval action by EOEEA, coupled with the non-discretionary language in the Waterways Regulations commanding MassDEP to waive the waterfront building height restrictions, as being flawed as a matter of law because this cemented a regulatory process that cannot be reconciled with M.G.L. c. 91, § 18.  Specifically, Plaintiffs’ reading of Section 18 was that it reserved the licensure determinations for structures on tidelands to be exclusively within the purview of MassDEP, not EOEEA.  Defendants EOEEA and MassDEP disagreed with this position as a matter of law.

III. Discussion

In this instance, the Court sided with the Plaintiffs’ reading of what Chapter 91 requires.  As explained by the Court, under Section 18 of Chapter 91, MassDEP “…may license a non-water-dependent use of tidelands (except for landlocked tidelands) only if it first has made a written determination, after a public hearing, that the proposed structure or work, ‘serve[s] a proper public purpose and that said purpose shall provide a greater public benefit than public detriment to the rights of the public in said lands and that the determination is consistent with the policies of the Massachusetts coastal zone management program.’”   The Court then went on to describe how EOEEA and MassDEP have separate enumerated responsibilities under Chapter 91.  Ultimately, the Court found that the “…Legislature decreed in [Chapter 91] that the job of deciding whether a particular structure or project that is proposed for tidelands property ‘serve[s] a proper public purpose and…provide[s] a greater public benefit than public detriment to the rights of the public in said lands’ belongs solely to [MassDEP].”  The Court noted that other entities like local planning boards and EOEEA have input and advisory roles for MassDEP to consider in its decision-making process, “…but the proverbial buck, by statute, stops with the [MassDEP].”

In reaching its decision, the Court had opportunity to analyze five arguments advanced by the Defendants, including: (1) the Waterways Regulations do not delegate MassDEP’s decision-making authority to EOEEA; (2) certain sections of the Massachusetts General laws may be read as a delegation of authority by the Legislature to EOEEA to further public trust rights in tidelands; (3) it’s permissible for MassDEP to relinquish a portion of its responsibilities to EOEEA given the organizational structure of MassDEP being a department within EOEEA; (4) the Waterways Regulations are a reasonable and permissible exercise of MassDEP’s rulemaking authority; and (5) the same Waterways Regulations were submitted to the Legislature for statutorily-required review prior to their promulgation as final and effective regulations.  The Court dispatched each argument in turn, but in the end, the Court could not see its way clear to either deviate from what the express language of Chapter 91 requires, or otherwise subscribe to a legal theory advanced by one of the Defendants’ arguments.

Accordingly, the Court ordered, in part, that the sections of the Waterways Regulations, 310 CMR §§ 9.34(2)(b)1. and 9.51(3)(a)-(e), which require the MassDEP to relinquish its authority to EOEEA make license determinations pursuant to M.G.L. c. 91, § 18, in the context of an approved MHP, are “invalid and ultra vires.”  This presents a problem for both the project at issue and for projects similarly situated.   

IV. Paths Forward

There are at least a few options of where the Commonwealth could go from here.  First, an appeal of the Superior Court’s decision is an obvious and likely option. Most likely, the project proponent will pursue this course, at a minimum.  Second, the MassDEP could choose to rely on the “severability clause” within the Waterways Regulations, 310 CMR § 9.09(6), and seek to implement its licensure decisions without the specific provisions that the Court invalidated.  This option seems unlikely, given that it would remove a significant and established height restriction exemption that has been part of the Commonwealth’s policy position and waterfront licensure decision-making processes for decades.  Third, the Commonwealth could pursue statutory revisions to Chapter 91 to acknowledge a more substantive decision-making role for EOEEA in the context of an MHP, or otherwise seek statutory changes that would, in effect, reverse the Court’s holding and resuscitate the invalidated Waterways Regulations.  Finally, MassDEP could pursue changes to the Waterways Regulations.

Proceeding with legislative and/or regulatory approaches also invites the Legislature and/or MassDEP to also take a broader look at Chapter 91 and/or the waterfront permitting regulatory regime to account and mitigate the impacts from sea level rise (“SLR”).  The MassDEP has already undertaken a process to review its Waterways Regulations, with a stated preference “…to incentivize efforts to enhance the resiliency of existing licensed water-dependent and non-water dependent structures and fill, as well as establish standards for new structures subject to Chapter 91 licensing requirements.” [1]  Further, members of an advisory group have already identified a “…need to establish, for project planning purposes, thresholds for elevation or the degree to which flood-proofing should occur to help protect against SLR predicted for the year 2100 (current models predict SLR will be 0.7 to 6.5 feet).” [2]  Finally, efforts to regulate and provide for climate adaption is also a topic that many coastal municipalities in the Commonwealth have begun to undertake. For example, the Towns of Hull and Swampscott have enacted local bylaws to provide coastal flood overlay districts that are designed specifically to provide for how development and redevelopment can occur in sustainable fashions to provide for climate change adaption.  In sum, while the Court’s decision may have placed a temporary pause on certain waterfront permitting decisions, it may have also provided a tempting invitation for the Commonwealth to take a closer look at Chapter 91 and climate resiliency efforts, including ways to mitigate the impacts of SLR.

[1] See, Climate Preparedness for Water Resources, Preparing Coastal Waterfront Structures, Chapter 91, MassDEP https://www.mass.gov/info-details/climate-preparedness-for-water-resources.

[2] Id.