Court rules BRA is a government agency, so waterfront developer in Charlestown has to set aside space for the public

In the second judicial defeat for the BRA in a week involving waterfront land, the Massachusetts Appeals Court ruled today the developer of an apartment complex in Charlestown has to comply with a state order to set aside most of its ground floor for "public accommodation" uses under state waterfront regulations.

Although the BRA had initially supported the state requirement so strongly it made it a deed restriction when it handed over the 2.6-acre parcel for private development, it eventually sided with Navy Yard Four Associates in its battle with the state to shrink the size of the public space by more than half.

The ruling comes a week after a federal judge ruled the BRA couldn't lease a Long Wharf shelter to a restaurant operator.

The Charlestown case, involving HarborView at the Navy Yard, gave the appeals court three main issues to consider in determining whether the state Department of Environmental Protection could make developer Navy Yard Four stick to its original agreement: Whether the land on which the complex sits is "tidelands" subject to Massachusetts seashore regulations first codified in the Colonial Ordinance of 1641-1647; if so, whether the land in question was "Commonwealth" or "private" land and whether the BRA was a "Commonwealth" governmental agency.

DEP cited state law that gives it oversight of the "public trust" involved with waterfront development, especially on government or "Commonwealth" land.

The appeals court ruled that the land, which at least at one point in its history fell between the low-tide and high-tide marks, was tidelands over which the state could have some say.

The court then noted current state law on tidelands is pretty binary: Either such land is "Commonwealth" land or "private" land.

The distinction is important because current state law defines "Commonwealth tidelands 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.

The court continued:

Interpreting "private party" under the statute to include a political subdivision or quasi public agency runs counter to the plain meaning of "private." ...

We conclude that DEP's interpretation that tidelands held by quasi public agencies and political subdivisions of the Commonwealth fall within the statutory term "Commonwealth tidelands" is reasonable and entitled to deference given the need to choose between only two categories of tidelands (private and Commonwealth), the public rather than private nature of political subdivisions and quasi public authorities, and the ambiguity of the statutory
term "Commonwealth," which in general understanding may or may not include such political subdivisions and quasi public agencies.

The developer argued that, in any case, it was clearly a private concern, not a government entity. The court said, true, but the initial BRA agreement to hand over the land - to another developer, from which Navy Yard Four bought the project - contained requirements to comply with the state order - issued when the land was still BRA owned.

The developer and the BRA argued that since they agreed to the original set-aside of 75% of the ground floor for public use, they could agree to revise that. Nope, the court said, because DEP had gotten involved and it was still insisting the developer stick to the original agreement.