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Boston Waterfront Condo Case Reminds Us Who Can Enforce Public Trust Principles Featured

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Commercial Wharf East Condominiums and Boston Boat Basin (right). Commercial Wharf East Condominiums and Boston Boat Basin (right).

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).

Plaintiff was an association of owners of condominiums located at the landward end of Commercial Wharf in Boston. Defendant owns an inn and marina at the seaward end of Commercial Wharf.

The Association filed suit to enforce certain 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 “special events.”)

Boston Boat in defense argued the restrictions should be void because they unduly restrict the public’s access and use of the Boston Harbor waterfront in violation of the public trust doctrine.

In other words, Boston Boat as a 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 on private tidelands, which are 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 own 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.

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 Appeals 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 the property. Critically, that license required Boston Boat 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 here for the real estate, land use, environmental, and law enforcement communities 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, tenants and operators are well advised to understand the public trust restrictions under which they own, lease or occupy their properties, which are subject to the easement-like reserved public rights on private tidelands, the sovereign rights of the public on public tidelands, and the powers, duties, permits and procedures of MassDEP as the delegated entity chosen by the Legislature to license and enforce these principles.

Read 365 times Last modified on Tuesday, 18 January 2022 13:53
Nathaniel Stevens, Esq.

NATHANIEL STEVENS, Esq. is a Partner of McGregor Legere & Stevens PC. Since being admitted to the Massachusetts Bar in 1996, he has handled a broad range of environmental and land use matters, from administrative law to litigation. He has helped clients with environmental issues including permitting, development, contamination, transactions, conservation, real estate restrictions, underground tanks, water supply, water pollution, subdivision control, tidelands licensing, Boston and state zoning, coastal and inland wetlands, stormwater, air pollution, and energy facility siting.

Mr. Stevens’ work includes state court litigation over liability for property damage, insurance claims for environmental damage, cost-recovery for contamination cleanups, and damage to municipal lands and public natural resources. His permit-related and administrative litigation includes bringing and defending challenges to conservation commission permits for wetlands work, interpreting and enforcing conservation restrictions, and reviewing decisions by the Department of Environmental Protection (“MassDEP”). He handles adjudicatory proceedings in MassDEP, the Division of Administrative Law Appeals (“DALA”), the Energy Facilities Siting Board, and the U.S. Environmental Protection Agency (“EPA”).

In addition to litigation, Mr. Stevens has utilized dispute resolution and other problem-solving skills to efficiently and effectively achieve his client’s goals. This includes working with land owners and land conservation organizations on a variety of permitting, land use, and management issues.

Mr. Stevens has conducted training through the Citizen Planner Training Collaborative (“CPTC”) for Planning Boards and Zoning Boards of Appeals on the Zoning Act and Subdivision Control Law. He has led Massachusetts Association of Conservation Commission (“MACC”) workshops and training units for Conservation Commissions on the Wetlands Protection Act, Home Rule, the Open Meeting Law, and the Public Records Law.

Mr. Stevens has written for legal and environmental publications on subjects including wetlands protection law at the local and state level, quorum requirements for local boards and commissions, MassDEP regulatory reforms, Home Rule and preemption, EPA programs, and state Brownfields Law. His articles on changes to the Wetlands Protection Act and to the Permit Extension Act have been published by the Real Estate Bar Association, MACC, and the American Council of Engineering Companies of Massachusetts (“ACEC-MA”).

Mr. Stevens is a member of the American, Massachusetts, and Boston Bar Associations. He recently served as Co-chair of the Public Policy Committee of the BBA's Real Estate Section.

Mr. Stevens is a member of the Arlington Conservation Commission on which he served as Chair for many years. He served on the Board of Directors of the Arlington Land Trust, Inc. and on the Executive Committee and the Board of Directors of the Lake Sunapee Protective Association, a New Hampshire member-supported nonprofit education and research watershed protection organization.

Prior to law school, Mr. Stevens was awarded a John Knauss Sea Grant Fellowship to study national marine policy in Washington, D.C. During and after this national fellowship, he worked on wetlands policy issues in EPA’s Wetlands Division. In his first year of law school, Mr. Stevens was awarded “Best Brief” in Moot Court Competition. In his second year of law school, he obtained through a writing competition a position on one of the school’s two law journals and published an article on hydropower.

Mr. Stevens is a graduate of Vassar College and Suffolk University Law School (cum laude), with a Masters of Science in Natural Resource Policy and Planning from the University of Michigan’s School of Natural Resources.

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