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04.05.2021 | Legal Advisory

On April 1, 2021, the Superior Court issued a summary judgment decision in Katharine Armstrong, et al. v. Kathleen Theoharides, et al.,[1] which impacts coastal properties on previously filled tidelands and millions of square feet of buildings throughout the Commonwealth that were constructed, purchased, and financed in reliance on Chapter 91 licenses issued in conformance with municipal harbor plans. Absent the decision being overturned or legislative action to authorize the longstanding regulatory process for approval of municipal harbor plans, the Court’s decision creates significant uncertainty both for those properties already licensed pursuant to a municipal harbor plan and for those that are in the midst of their design and permitting processes.

The Trustees of the Harbor Towers condominium and the Conservation Law Foundation challenged the City of Boston’s Downtown Waterfront District Municipal Harbor Plan, which, among other developments, authorized the proposed 600-foot-tall tower on the current site of the Harbor Garage that was the impetus for the litigation.

Harbor Towers argued, and the Superior Court agreed, that those aspects of the Waterways Regulations that pertain to municipal harbor plans are invalid to the extent the Department of Environmental Protection has improperly delegated its regulatory authority under the Massachusetts Public Waterfront Act, or Chapter 91, to the Secretary of the Executive Office of Energy and Environmental Affairs (EEA) in the context of municipal harbor plans.

Regulatory Context

Under the public trust doctrine, the Commonwealth holds significant interests in both Commonwealth and private tidelands in trust for the public. Unless otherwise exempted, the Commonwealth exercises its authority under the public trust doctrine by requiring that all structures on filled tidelands obtain a Chapter 91 license from the Department of Environmental Protection. The Department has promulgated Waterways Regulations under 310 CMR 9.00 that specify, among other things, certain requirements for structures on filled tidelands, such as height limitations, use restrictions, open space requirements, and requirements for a water dependent use zone. 

The Waterways Regulations, however, also allow a proposed development to deviate from their requirements if the development complies with a municipal harbor plan. The Municipal Harbor Plan Regulations, 301 CMR 23.00, allow a municipality to undertake an extensive public process to develop a plan for its waterfront areas that may propose certain substitutions, offsets and other public benefits in lieu of compliance with the strict requirements set forth in the Waterways Regulations. For example, additional height might be proposed in one area in exchange for greater open space and public access in another area. If the Secretary of EEA approves the municipality’s proposed municipal harbor plan, then a proposed structure must comply with the requirements of the municipal harbor plan in order to obtain a Chapter 91 license.

The Court’s Decision

The Superior Court determined that the sections of the Waterways Regulations that require the Department of Environmental Protection to follow the requirements set forth in a municipal harbor plan approved by the Secretary of EEA when licensing a development in accordance with Chapter 91 are an improper delegation of the Department of Environmental Protection’s regulatory authority under the public trust doctrine and are thus invalid.

The Impact of the Court’s Decision

The Municipal Harbor Regulations have established the regulatory framework for  municipalities, the Commonwealth, private developers, and other stakeholders for the permitting and construction of millions of square feet of residential and commercial buildings, and associated public spaces and resiliency measures, which has delivered significant public benefits throughout the Commonwealth. Municipal harbor plans allowed municipalities to develop, through an open public process, comprehensive plans to allow for development in conformance with local zoning laws and local goals, while remaining consistent with the public trust doctrine. Municipal harbor planning recognizes the fact that the waterfront looks different in Boston than in Chatham or Gloucester and some variation in the statewide Chapter 91 requirements is necessary. The Court’s decision upends this long-established regulatory procedure in a manner which constrains the role of municipalities, residents and other stakeholders in planning their waterfront areas. Strict conformance with the statewide Chapter 91 requirements will often limit the density and viability of new development, including much needed residential housing and well-planned open public spaces and resiliency measures, and may impose requirements in areas they are not well suited for. 

The Court’s decision also creates significant uncertainty both for those properties already licensed pursuant to a municipal harbor plan and for those in the midst of their design and permitting processes. This uncertainty could impact financing of already constructed projects along the Commonwealth’s entire waterfront, not just Boston, and stifle much needed development and public benefits.

If the Court’s decision is not overturned on appeal, legislative action would be necessary to codify the longstanding approval process for municipal harbor plans. As with prior challenges to the Waterways Regulations that were initially overturned by the courts such as in Moot v. Dep’t. of Environmental Protection, 448 Mass. 340 (2007), the legislature will need to act to provide the Department and the Secretary of EEA with authority to continue the municipal harbor plan process, which has repeatedly been used effectively by municipalities to encourage development in accordance with the goals of Chapter 91 to protect the public’s rights in the waterfront. 

[1] Docket Nos. 1884CV02132-BLS1 & 1884CV02144-BLS1

This advisory was prepared by Michael Leon, Mary Marshall, Valerie Moore, and Matthew Snell in Nutter’s Real Estate Department. For more information, please contact Michael, Mary, Valerie, Matthew, or your Nutter attorney at 617.439.2000.

This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.