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Appeals Court Limits Private Enforcement of Waterfront and Tidelands Public Trust Rules Featured

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Commercial Wharf, Boston Harbor Commercial Wharf, Boston Harbor

Property owners lack legal authority to use private litigation to enforce their public trust rights. Only the Commonwealth may enforce public trust rights in Commonwealth tidelands and other waterfront areas. That important principle was reinforced in the Massachusetts Appeals Court’s July 10, 2018 decision in the case of Commercial Wharf East Condominium Assoc. v. Boston Boat Basin, LLC, 93 Mass. App. Ct. 523 (2018).

As we set sail, a brief description of the facts will provide context. Plaintiff is an association of owners of condominiums located at the landward end of Commercial Wharf in Boston. Defendant is the owner of an inn and marina at the seaward end of Commercial Wharf.

The condominium association filed a lawsuit to enforce property use restrictions benefiting it and burdening Boston Boat’s operations (regulating parking and deliveries, prohibiting commercial boats selling alcohol or allowing gambling, and limiting the “special events” to be hosted at the inn).

In response, the Boston Boat argued that the restrictions are void because they unduly restrict the public’s access and use of the Boston Harbor waterfront in violation of the public trust doctrine. Thus, the Defendant sought to enforce privately the rules governing the present and formerly filled public tidelands, and state licenses granted for use of the shorefront.

Readers may know that the public trust doctrine protects the public’s rights to fish, fowl and navigate in tidelands, defined by state statute as “present and former submerged lands and tidal flats lying below the mean high water mark.” G.L. c. 91, § 1.

This case involves “Commonwealth tidelands” (as opposed to “private tidelands”), which are defined as “tidelands held by the commonwealth in trust for the benefit of the public or held by another party by license or grant of the commonwealth subject to an express or implied condition subsequent that it be used for a public purpose.” G.L. c. 91, § 1.

In rejecting the Boston Boat’s argument that the restrictions on use of its property violate the public trust doctrine, the Appeals Court made clear that litigation between private parties may not be used as a vessel to enforce public trust rights. Public trust rights may be enforced only by the Commonwealth and entities to which the state Legislature has delegated that enforcement authority. The Legislature has delegated that authority to the Massachusetts Department of Environmental Protection (MassDEP) through the Chapter 91 licensing process, but not to the Defendant or the Land Court.

The Appeals Court relied on what it described as “the Supreme Judicial Court’s consistent and strict enforcement of the express delegation requirement” to “reject the argument that the proper extent of public trust rights in a particular locus may be determined in private litigation such as the present case.”

Rather, the Court concluded that MassDEP had already weighed the conflict between private rights and public trust rights when it issued a Chapter 91 license to the Boston Boat’s predecessor in interest. Critically, that license required the Defendant to “allow public access on foot to its pier, unless it is determined that [Defendant] ‘does not have the legal right to provide such access.’ ”

Consequently, the Appeals Court ruled that MassDEP’s “special role in this area” makes that agency responsible for “determin[ing] whether Boston Boat is currently using the locus in accordance with the license and, if not, how best to proceed in order to vindicate public rights.”

A practical lesson for the real estate, land use, environmental, and law enforcement communities to take from this case is that a private party wishing to protect public trust rights in Commonwealth tidelands (by challenging the issuance of, conditions imposed by, or compliance with a Chapter 91 license) must utilize appropriate channels at MassDEP rather than bringing it up for the first time in court.

Waterfront owners are well advised to understand the public trust restrictions under which they own or lease their properties, subject to the easement-like reserved public rights on private tidelands, the sovereign rights of the public on public tidelands, and the powers and rules of MassDEP as the delegated entity chosen by the Legislature to license and enforce some of these.

At the time of this writing, the Appeals Court’s decision has not been appealed to a higher court.

Read 2346 times Last modified on Friday, 10 August 2018 15:29
Luke H. Legere, Esq.

LUKE H. LEGERE, Esq. is a Partner with McGregor Legere & Stevens, PC. He helps clients with a broad range of environmental, land use, and real estate issues including coastal and inland wetlands and waterways, zoning, subdivision, development agreements, conservation restrictions, state and local enforcement actions, stormwater, solid waste, hazardous waste, air pollution, site remediation, regulatory takings, affordable housing, and energy facility siting.

Mr. Legere routinely represents clients in permitting matters before conservation commissions, planning boards, zoning boards of appeals, boards of health, and other local environmental and land use boards and officials. He frequently represents clients in administrative enforcement proceedings and adjudicatory hearings before state agencies such as the Department of Environmental Protection (“DEP”). He regularly handles litigation in state and federal courts at both the trial and appellate levels.

Mr. Legere often writes and speaks on topics such as the Wetlands Protection Act, Chapter 91, Watershed Protection Act, Article 97, water pollution control, non-zoning wetlands bylaws, zoning and land use, regulatory takings, and brownfields. He has had articles published in newsletters for the Massachusetts Association of Conservation Commissions (“MACC”), Real Estate Bar Association (“REBA”), and Association of Massachusetts Wetlands Scientists (“AMWS”). He is the author of the Water Pollution Control chapter of the Massachusetts Continuing Legal Education’s (“MCLE”) treatise on Environmental Law.

Mr. Legere teaches a course on Legal Research and Writing at New England Law | Boston. He leads workshops for the Citizen Planner Training Collaborative (“CPTC”) offering guidance to members of local boards on the State Zoning Act, Special Permits and Variances, and Writing Reasonable and Defensible Decisions. He regularly serves as a panelist for MCLE’s “Practicing with Professionalism” program.

Mr. Legere has served as co-chair of the Boston Bar Association’s Wetlands, Waterways, and Water Quality Committee. He served two terms on the Board of Directors for the Queechy Lake Club, a non-profit corporation dedicated to the preservation and protection of Queechy Lake in Canaan, NY.

Mr. Legere is a graduate of Colgate University and New England Law | Boston, cum laude.

Mr. Legere has enjoyed success in court and agency administrative proceedings, and is often able to achieve his clients’ desired result by finding creative solutions to negotiate settlement for seemingly intractable disputes.

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