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Court sinks state approval of high rises along Boston Harbor

The Supreme Judicial Court ruled today that the state's environmental secretary went too far in approving a plan that would let developers replace the Aquarium garage and the James Hook seafood store with skyscrapers - not on the merits but because the legislature didn't give her specific permission to put her stamp on waterfront projects.

The ruling by the state's highest court could sink or seriously delay - even more - proposals that would have finally allowed the Chiofaro Co. to replace its garage with a 600-foot-tall residential, office and hotel tower and the owners of the Hook site to put up a 25-story hotel.

Chiofaro has been trying to do something with its garage since the administration of Tom Menino, who famously made sure Don Chiaforo could do nothing with the garage. Hook first began talking in 2013 about replacing what was left of its property, ravaged by a fire in 2008.

After Marty Walsh became mayor, his administration approved a "municipal harbor plan" that would have allowed both buildings, rather than limiting them to the 55-foot height otherwise allowed right on the water. Last year, acting Mayor Kim Janey ripped up the Walsh plan, citing concerns about rising sea levels.

At issue in the suit brought by residents of the neighboring Harbor Towers and the Conservation Law Foundation was whether state Executive Secretary of Environmental Affairs could just rule on a proposal involving "commonwealth" tidal lands along the harbor rather than merely making recommendations to the state Department of Environmental Protection. The court said state coastal law places the approval process entirely on the department and that if the legislature had wanted then Secretary Kathleen Theoharides to have final say, it would have specifically addressed that in legislation, but did not.

This might sound like a trivial bureaucratic distinction, given that the secretary oversees the department, but the court said it is actually a key part of a coastal "public trust doctrine," dating to Roman times, that recognizes the importance to the public of coastal lands - and which requires strict adherence to the specific rules set out by the legislature.

The public trust doctrine does not analyze reasonableness; rather, it requires express legislative delegation, as it addresses a special, unusually valuable form of public property. ...

Giving the department a nonbinding role for input to the Secretary on her decision whether to approve substitute specifications in connection with an approved [municipal harbor plan] cannot be squared with the Legislature's express delegation to the department of licensing decisions in the tidelands. The challenged regulations put the Secretary in the exact position that the Legislature delegated to the department; this the department cannot do. ...

However, the department may not cede to the Secretary the decision whether nonwater-dependent uses of tidelands serve, inter alia, a proper public purpose by binding itself to so find based on the Secretary's decision to approve specifications in connection with an MHP. These obligations are based in public trust principles and, as such, can only be delegated by the Legislature itself.

Complete list of parties and filings.

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