Navy Yard Four Associates, LLC v. Department of Environmental Protection, et al. (Lawyers Weekly No. 11-130-15)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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   14-P-607                                        Appeals Court   NAVY YARD FOUR ASSOCIATES, LLC  vs.  DEPARTMENT OF ENVIRONMENTAL PROTECTION & another.[1] No. 14-P-607. Suffolk.     April 2, 2015. – September 4, 2015.   Present:  Kafker, C.J., Kantrowitz, & Hanlon, JJ.   Harbors.  Real Property, Harbors, Restrictions, Littoral property, License.  Trust, Public trust.  License.  Department of Environmental Protection.  Administrative Law, Agency’s authority, Regulations, Agency’s interpretation of statute, Agency’s interpretation of regulation.  Regulation.  Statute, Construction.  Words, “Tidelands.”     Civil action commenced in the Superior Court Department on December 20, 2011.   The case was heard by Peter M. Lauriat, J., on motions for judgment on the pleadings and for partial summary judgment.     Donald R. Pinto, Jr., for the plaintiff. Seth Schofield, Assistant Attorney General, for Department of Environmental Protection. John A. Pike, for Conservation Law Foundation, amicus curiae, submitted a brief.   KAFKER, C.J.  This appeal arises from a dispute over public accommodation requirements imposed within a waterways license issued by the Department of Environmental Protection (DEP) pursuant to G. L. c. 91 for property currently owned by the plaintiff, Navy Yard Four Associates, LLC (NYF).  The property is an approximately 2.6-acre parcel of land in Charlestown abutting Boston Harbor.  It is the site of a 224-unit apartment building development known as Harborview.  DEP concluded in 2004 that the project was a nonwater-dependent use sited on filled “Commonwealth [t]idelands” and therefore special conditions were included as part of its waterways license to ensure that the project served a “proper public purpose.”  One of these special conditions was that seventy-five percent of the ground floor of the building be reserved for facilities of public accommodation.  In 2009, NYF sought to amend its license, particularly the public accommodation requirements, contending that (1) G. L. c. 91 limits “Commonwealth tidelands” to submerged lands and excludes the tidal flats on which this project is sited, and (2) “Commonwealth tidelands” do not include property owned by the Boston Redevelopment Authority, which owned the property at the time of permitting, or other such political subdivisions or quasi public agencies of the Commonwealth.  DEP declined to grant the amendment, and NYF appealed DEP’s decision to the Superior Court in accordance with G. L. c. 30A, § 14, naming both DEP and the Commonwealth as defendants.  The Superior Court affirmed DEP’s denial of NYF’s requested c. 91 license amendment and rejected NYF’s request for a declaratory […]

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