Parks, Urban Renewal, and the Public Trust

By Paula M. Devereaux

In the case of Sanjoy Mahajan v. Department of Environmental Protection, 464 Mass. 604 (2013), the Supreme Judicial Court answered interesting questions about a parcel of land at the end of Long Wharf in Boston involving the interplay of urban renewal authority under MGL c. 121B, parkland issues under Article 97 of the Amendments to the Massachusetts Constitution, and the issuance of a Chapter 91 license by the Mass. Department of Environmental Protection (DEP).

Decided by the SJC on March 15, 2013, Mahajan focused on an area at the end of Long Wharf in Boston containing an approximately 33,000-square-foot plaza aream including a portion of the Harborwalk along the water’s edge, and 3,430-square-foot pavilion building.

This case had its beginnings in 1964, with the adoption of the Downtown Waterfront – Faneuil Hall Urban Renewal Plan by the Boston Redevelopment Authority (BRA), an urban renewal agency and authority under MGL c. 121B §§ 4 and 9. One of the strongest powers given to an urban renewal agency is the power of eminent domain under c. 121B §§ 11 and 45. Long Wharf was taken by the BRA by eminent domain in 1970, in accordance with the Urban Renewal Plan, and remains in BRA ownership. In 2008, the BRA sought to lease a portion of the plaza area and pavilion for use as a restaurant in order to enliven this area. The pavilion would be expanded by approximately 1,225 square feet for the restaurant use.

Due to its proximity to the water and its location on filled tidelands, this area is subject to the licensing requirements of MGL Chapter 91. The Department of Environmental Protection (DEP) issued to the BRAs Chapter 91 License allowing this use. Ten citizens appealed DEP’s issuance of the Chapter 91 license, arguing that the issuance of a Chapter 91 license constituted a disposition or change of a use that required legislative authorization under Article 97 of the Amendments to the Massachusetts Constitution. Article 97 requires a two-thirds vote of the Legislature for a change of use disposition of land or easements acquired for public purposes.

The questions regarding the interplay of the Chapter 91 license and Article 97 would only arise if the area was a public park protected by the provisions of Article 97. Superior Court Judge Elizabeth Fahey found this area was subject to the protections afforded by Article 97. The SJC first looked at the language of Article 97 and then at the history of the takings made by the BRA for Long Wharf, as well as the Urban Renewal Plan, and determined that the takings and actions by the BRA did not result in the dedication of the area in questions as a public park.

Even though the area is open to the public, the SJC determined that when the area was taken by the BRA it was not taken or later designated a parkland for Article 97 purposes. Even though the Urban Renewal Plan designated some areas within the plan as “open spaces” and sought to provide public access to the water, the SJC help that the BRA actions were not taken for Article 97 purposes.

The court found that “although as a practical matter, certain aspects of an urban renewal plan may accomplish goals similar to those outlined in Article 97, the overarching purpose for which land is taken is distinct from Art. 97 purposes.”

In short, using the areas as open space and providing public access are not equivalent to a full dedication of the area as a park entitled to Article 97 protection.

This case also contains an interesting discussion of an opinion issued in 1973 by Attorney General Robert Quinn regarding the applicability of Article 97 to land taken by a municipality or agency that may be used for public purposes. The SJC found that the focus should be on the purposes for which the taking was made and declined to adopt the more expansive interpretation of Article 97 put forward in the 1973 opinion. The court found that the BRA could take land for Article 97 purposes and could subsequently restrict the use of land for Article 97 purposes, but unlike the finding in this case, the intent would have to be clear.

The SJC could have ended the discussion once it found that the area was not a park for Article 97 purposes. Instead, it went on the answer the question of whether the issuance of a Chapter 91 license is a “disposition” triggering compliance with the requirements of Article 97. The court held that it was not – the issuance of a Chapter 91 license is akin to other approvals that a project would have to obtain, like zoning – and the change of use would not occur until a project obtained all other approvals and undertook “an actual change in use, not mere preparations for that change.” The disposition triggering compliance with Article 97 would be the disposition by the BRA – not a granting of a license to the BRA.

This case illustrates the powerful rights granted to an urban renewal agency and the long-term ramifications of urban renewal. Urban renewal under MGL c. 121B remains a powerful tool in a city’s arsenal in dealing with economic development and revitalization, even if over time the needs of a particular neighborhood (or parcel) may change.

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A member if the association’s board of directors, Paula Devereaux has a broad practice in all areas of commercial real estate and land use law. A partner in Boston firm of Rubin & Rudman LLP, she can be contacted by email at pdev@rebinrudman.com