Mahajan, et al. v. Department of Environmental Protection, et al. (Lawyers Weekly No. 10-046-13)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750;  (617) 557-1030; SJCReporter@sjc.state.ma.us     SJC‑11134   SANJOY MAHAJAN & others[1]  vs.  DEPARTMENT OF ENVIRONMENTAL PROTECTION & another.[2]     Suffolk.     November 5, 2012.  ‑  March 15, 2013. Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.     Department of Environmental Protection.  Redevelopment of Land.  Urban Renewal.  Harbors.  Parks and Parkways.  Constitutional Law, Taking of property.  Due Process of Law, Taking of property, Commonwealth’s interest in tidelands.       Civil action commenced in the Superior Court Department on February 26, 2010.   The case was heard by Elizabeth M. Fahey, J., on motions for judgment on the pleadings.   The Supreme Judicial Court granted an application for direct appellate review.     Denise A. Chicoine for Boston Redevelopment Authority. Annapurna Balakrishna, Assistant Attorney General, for Department of Environmental Protection. Gregor I. McGregor (Michael J. O’Neil & Luke H. Legere with him) for the plaintiffs. The following submitted briefs for amici curiae: Heather Maguire Hoffman for Shirley Kressel.   Thomas B. Bracken for The Sierra Club. Peter Shelley & John A. Pike for Conservation Law Foundation, Inc., & others.     CORDY, J.  This action arises from the Department of Environmental Protection’s (department’s) issuance of a waterways license under G. L. c. 91 (chapter 91 license) to the Boston Redevelopment Authority (BRA) to redevelop a section of land owned by the BRA on the seaward end of Long Wharf (project site).  The plaintiffs, ten residents of Boston’s North End neighborhood, appealed the issuance of the chapter 91 license to the department’s office of appeals and dispute resolution, and ultimately to a judge in the Superior Court, claiming the department acted unconstitutionally and beyond its statutory authority when it issued the chapter 91 license without obtaining a two-thirds vote of the Legislature as required by art. 97 of the Amendments to the Massachusetts Constitution.[3]  On cross motions for judgment on the pleadings, the motion judge ordered declaratory relief and issued a writ of mandamus ordering the department to enforce art. 97.  We granted the BRA’s application for direct appellate review.  We are presented with two principal questions:  Whether the project site, which the BRA took by eminent domain for urban renewal purposes, is subject to art. 97; and if art. 97 does apply, whether the department may issue the chapter 91 license to the BRA without triggering the requirement of a two-thirds vote of the Legislature.  […]

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