Plans for a 600-foot tower looking over the New England Aquarium out to the Boston Harbor are suddenly shrouded in doubt, following a ruling last week by a local judge.
And those plans are hardly alone.
In a decision that came down last Thursday, Suffolk County Superior Court Judge Brian Davis ruled in favor of a lawsuit by the Conservation Law Foundation and Harbor Towers apartment residents seeking to block the proposed redevelopment of the Boston Harbor Garage into the so-called Pinnacle, a massive mixed-use tower proposed last year by developer Don Chiofaro.
The judge’s problem wasn’t with the Pinnacle project itself, but the process under which it was approved. In his decision, Davis effectively invalidated Boston’s downtown waterfront zoning plan, writing that it was approved by wrong a state official in 2018.
However, if that’s the case, not only is the Pinnacle project and other projects on the small slice of land comprised by Boston’s downtown waterfront plan in jeopardy, but so could be developments happening under similarly approved waterfront zoning plans from Gloucester to New Bedford to Provincetown.
“There’s been a lot of forward momentum in the downtown that now needs to recalibrate based on how this decision gets responded to,” Kathy Abbott, the president and CEO of the nonprofit group Boston Harbor Now, told Boston.com.
To fully understand Davis’s ruling, it might require taking a few steps back.
Massachusetts is home to the nation’s oldest waterfront protection law, known as Chapter 91, which dates back to 1866 and — following amendments in the 1980s — includes regulations on the use of filled-in tidelands. Anyone familiar with an old map of Boston will know that much of the city’s downtown is the product of extensive land filling.
Intended to protect the public’s use of inland and coastal waterways, Chapter 91 includes pedestrian access requirements and rules limiting the size of waterfront buildings. For example, buildings within 100 feet of the water are capped at 55 feet.
However, many came to believe that those rules were a bit outdated and too one-size-fits-all. State officials say they’re good baseline standards for preserving the public’s rights in tidelands, but ill-suited to apply to every harbor. And in 1990, the Massachusetts Department of Environmental Protection (DEP) and Executive Office of Energy and Environmental Affairs (EEA) created a process for communities to work with the state on municipal harbor plans for specific areas.
If they got approval from the state’s EEA secretary, the process allowed cities to deviate from the statewide rules, as long as other aspects of the project promoted public access. The comprehensive plans can also work to improve transportation and ensure that parcel-by-parcel permitting doesn’t disrupt public access to the waterfront. Still, the plans also opened the door to much larger waterfront developments, such as Chiofaro’s proposed 600-foot tower and many other projects, including the Encore Boston Harbor casino in Everett, at times raising objections from environmental advocates and local residents.
Since 1990, the state’s secretary of energy and environmental affairs has signed off on 17 different municipal harbor plans.
According to Davis, illegally so.
In his decision last week, Davis sided with the plaintiffs’ argument that the authority to approve such projects “belongs solely to DEP,” not the EEA secretary.
The Conservation Law Foundation argues that giving the EEA secretary — who is the DEP commissioner’s boss and reports directly to the governor — approval authority makes decisions “political rather than regulatory.”
And according to Davis, state law is clear that such power rests with the DEP. Despite his “best efforts,” the judge said he couldn’t find any way that the process created in 1990 was consistent with Chapter 91’s “legislative mandate” that only the state’s DEP commissioner could approve tidelands projects.
“Other entities, such as local planning boards and the Secretary, may provide input and advice to the DEP for consideration in its decision-making process, but the proverbial buck, by statute, stops with the DEP,” Davis wrote.
Jeff Porter, the chair of environmental law practice at the Boston-based legal firm Mintz, says the ruling was “a pretty well-reasoned decision,” but one that creates a lot of uncertainty.
“Any projects that were planning to adhere to the municipal harbor plan are basically now in limbo,” Porter told Boston.com.
Chiofaro is pledging to fight on. And state officials could appeal the ruling to the Massachusetts Supreme Judicial Court. Katie Gronendyke, an EEA spokesperson, said the administration is “reviewing the ruling.”
“For thirty years, the Commonwealth and municipalities have worked cooperatively to enhance our public waterfronts using the municipal harbor planning process, and today’s ruling could have a significant impact on years of careful planning and development in communities across Massachusetts,” Gronendyke said.
If upheld, the ruling will force the DEP to revise its tidelands regulations to clarify its approval authority, according to the Conservation Law Foundation. It could also push the Legislature to change the state’s laws on who has approval authority (a similar scenario played out in 2007 following an SJC decision involving the NorthPoint development in Cambridge).
The ruling could induce a broader reconsideration of the state’s coastal development laws, according to Porter.
“The reason there’s been an explosion of municipal harbor plans is an increased awareness, in many cases, that the mid-century rules don’t work,” he said. “Maybe it’s time for the Legislature and the governor to take a fresh look at our mid-20th century rules and see whether they should be changed for the 21st century, especially as we face the certainty of a greenhouse gas-charged climate. And in my view, that means putting everything on the table.”
While some say the state should discourage new development in areas vulnerable to flooding, others — including Gov. Charlie Baker — have called for increased investment in measures to make coastal areas more resilient to the effects of climate change.
For now, Porter says the ramifications of the ruling for proposed projects being built under other municipal harbor plans in Massachusetts depends of the individual timing of those developments. A successful appeal or law change could very well render the issue moot.
Abbott, whose group spent years advocating to secure some protections within Boston’s downtown waterfront harbor plan, say it’s still unclear how important the ruling will prove to be, but that the uncertainty in itself is important.
“The regulated community generally prefers certainty to uncertainty, even if it’s certainty that isn’t the answer that they’d like,” Porter said.
“It’s probably the most significant waterfront decision in 15 or 20 years,” Porter added. “And, you know, we’ll see what happens next.”