984 N.E.2d 821
Mass.2013Background
- BRA holds urban renewal and planning authority and acquired the project site on Long Wharf via 1970 eminent domain under a 1964 urban renewal plan; site includes Long Wharf Pavilion and is part of the Harborwalk and historic landscape.
- Project site and surrounding plans (1964 urban renewal plan and 1991 Municipal Harbor Plan) contemplated open space, pedestrian access, and harbor revitalization that may align with art.97 purposes.
- BRA proposed redevelopment (restaurant, outdoor seating, and related facilities) of the project site; required a chapter 91 license for tidelands; department issued license September 17, 2008.
- Plaintiffs, North End residents, challenged the license on grounds of art.97 compliance and alleged unconstitutional acts or excess of authority.
- Motion judge found art.97 applied due to urban renewal plan objectives; issued mandamus and declaratory relief ordering art.97 compliance; direct appellate review granted to BRA.
- Court holds that art.97 does not apply to the project site, and thus no two-thirds legislative vote was required; remands for consistent proceedings under c.30A
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the project site is subject to Art. 97 protections | Plaintiffs contend the site was taken for art.97 purposes | BRA/department argue site not taken for art.97 purposes | Art.97 not applicable to the project site |
| If Art. 97 applies, did the chapter 91 license constitute a disposition or use requiring a two-thirds vote | License change in use triggers Art.97 vote | License is a separate regulatory step, not a disposition | No triggering disposition or use by license issuance |
| Whether urban renewal taking can be deemed Art. 97 if land designated for art.97 purposes | Urban renewal plan may designate areas for art.97 | Designation under plan not automatically subject to Art.97 | Urban renewal can align with Art.97 in some cases but not automatically apply here |
| Whether the license creates a property right or easement that would trigger Art.97 | License grants lasting rights | License is conditional and does not convey a property right | License does not transfer an easement or property right triggering Art.97 |
| Standing and scope of challenge to the license independent of Art. 97 | Plaintiffs have standing to challenge license | Standing doubtful absent Art.97 impact | Mandamus relief inappropriate; standing analysis remains unresolved on remand |
Key Cases Cited
- Robbins v. Department of Pub. Works, 355 Mass. 328 (Mass. 1969) (prior public use doctrine limits disposition)
- Selectmen of Hanson v. Lindsay, 444 Mass. 502 (Mass. 2005) ( Art. 97 protections require specific designation or restriction to apply)
- Brookline v. Metropolitan Dist. Comm’n, 357 Mass. 435 (Mass. 1970) (public lands and use restrictions influence Art. 97 applicability)
- Muir v. Leominster, 2 Mass. App. Ct. 587 (Mass. App. Ct. 1974) (prior public use doctrine limits where land is not devoted to a specific public use)
- Miller v. Commissioner of the Dep’t of Envtl. Mgt., 23 Mass. App. Ct. 968 (Mass. App. Ct. 1987) (disposition trigger under Art.97 requires more than mere regulatory action)
- Hanson v. Lindsay, 444 Mass. 502 (Mass. 2005) (art.97 protections may arise where land designated for art.97 purposes by deed or record)