37 N.E.3d 46
Mass. App. Ct.2015Background
- Property: ~2.6-acre Charlestown site (Harborview), built on filled tidelands formerly part of the Charlestown Navy Yard; BRA received federal deed in 1979 and later conveyed to private parties, ending with Navy Yard Four Associates (NYF).
- DEP issued a Chapter 91 waterways license (2004–2005) classifying the site as "Commonwealth tidelands" because the Boston Redevelopment Authority (BRA) owned the land, and imposed special conditions for nonwater-dependent use, including that 75% of the ground floor be Facilities of Public Accommodation (FPAs).
- NYF built Harborview consistent with the license but later (2009) sought to amend the license to reduce and relocate required FPA space, arguing (1) "Commonwealth tidelands" should not include tidal flats and (2) BRA ownership did not mean the land remained "Commonwealth tidelands" after sale to a private owner.
- DEP denied the amendment, stating the classification as Commonwealth tidelands could not be changed absent legislative action; NYF requested an adjudicatory hearing, then sought judicial review in Superior Court under G. L. c. 30A, § 14.
- Superior Court affirmed DEP; the appeals court likewise upheld DEP, concluding DEP’s regulatory definitions and application were reasonable and the license (with FPA obligations) ran with the land.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether "Commonwealth tidelands" can include tidal flats (not just submerged lands) | NYF: "Commonwealth tidelands" should be limited to submerged lands; tidal flats should be excluded from Commonwealth category | DEP: Statute defines "tidelands" to include submerged lands and tidal flats; DEP reasonably includes both in "Commonwealth tidelands" | Held: Statutory text and purpose support DEP; includes tidal flats; agency interpretation upheld |
| Whether "Commonwealth" in "Commonwealth tidelands" excludes political subdivisions/quasi‑public agencies (e.g., BRA) | NYF: BRA and similar entities are not "Commonwealth"; tidelands held by them should be "private tidelands" | DEP: Statute ambiguous; DEP reasonably interpreted "Commonwealth" to include political subdivisions and quasi‑public agencies for classification purposes | Held: DEP's inclusion of political subdivisions/quasi‑public agencies as "Commonwealth" is reasonable and entitled to deference |
| Whether DEP exceeded its regulatory authority in defining "Commonwealth tidelands" | NYF: DEP regulation broadens statute and is ultra vires | DEP: Rulemaking filled statutory gaps reasonably and underwent legislative review process; presumptions support the rule | Held: NYF failed to meet the heavy burden to invalidate properly promulgated regulations; DEP acted within authority |
| Whether DEP acted unreasonably in denying NYF's license amendment (removing/relocating FPA obligations) | NYF: Conveyance to private owner and presumptions re: landward tidelands mean FPA obligations no longer appropriate | DEP: License ran with the land; original public‑purpose condition persisted; only Legislature can extinguish public trust rights; deed contained express conditions | Held: DEP's denial was not arbitrary or capricious; license (and FPA obligations) remained binding on NYF |
Key Cases Cited
- Boston Waterfront Dev. Corp. v. Commonwealth, 378 Mass. 629 (discusses public trust and shoreline property rights)
- Arno v. Commonwealth, 457 Mass. 434 (explains public trust application to tidal flats and limits on extinguishing public rights)
- Trio Algarvio, Inc. v. Commissioner of Dept. of Envtl. Protection, 440 Mass. 94 (tidelands subject to public trust)
- Moot v. Department of Envtl. Protection, 448 Mass. 340 (Chapter 91 governs use of tidelands and public rights)
- Biogen IDEC MA, Inc. v. Treasurer & Receiver Gen., 454 Mass. 174 (administrative deference and statutory interpretation framework)
- Goldberg v. Board of Health of Granby, 444 Mass. 627 (agency clarification of statutory ambiguity entitled to deference)