Massachusett\u27s Chapter 91: An Effective Model For State Stewardship Of Coastal Lands

The South Boston waterfront area has been described as the last frontier of developable property along the highly coveted Boston waterfront. As with most urban development projects, there are many stakeholders with different and often competing interests in the South Boston waterfront area, including landowners, developers, architects, historical associations, neighborhood groups, local planning boards, and state environmental agencies. Through the operation of Chapter 91, the Massachusetts Public Waterfront Act, the Commonwealth has mandated that another interest, the public\u27s interest in tidelands, will not only be considered, but accommodated. Massachusetts has taken a farsighted and comprehensive approach to ensure that the shores of its sea remain the common property of its citizens. Through Chapter 91 and its attendant permitting scheme, Massachusetts has asserted its sovereign obligation to protect the public\u27s interests in the shores of the sea by regulating the development of tidelands in the Commonwealth. As private property owners and municipalities seek to develop land along the water\u27s edge, the provisions of Chapter 91 provide the basis for the Commonwealth to both review proposals for development and changes to existing waterfront structures, and require the inclusion of conditions that promote public use of and access to the water. The Rowes Wharf complex, built in the mid-1980s, on Boston\u27s Atlantic Avenue is one of the more obvious examples of Chapter 91\u27s success in promoting public access without sacrificing commercial profit. In addition to the archway that provides visual access to the water from the street, Rowes Wharf features pedestrian walkways and plazas, public restrooms, a marina, temporary boat dockage, ferry terminals, a watershuttle to Logan Airport, and a public observatory in the rotunda. Although opponents of Rowes Wharf questioned whether the public would feel comfortable walking along the million dollar condominiums, anyone who has wandered through the grand archway on a sunny New England day knows that this early fear has proven unwarranted. It is questionable whether the developers would have provided these significant public benefits without the existence of Chapter 91. Chapter 91 went largely unchanged from its adoption in 1866 until the Supreme Judicial Court issued its landmark decision Boston Waterfront Development Corporation v. Commonwealth, in which the court held that even formerly submerged land that had been filled and built upon remained impressed with a public trust. In 1983, the legislature responded to the decision by amending Chapter 91 to ensure that tidelands are either developed for a water-dependent use, or otherwise serve a proper public benefit. Developers strongly objected to the new regulations, largely due to the height and space restrictions that they mandated. Developers noted that the height of Rowes Wharf would have caused the project to fall out of compliance with Chapter 91 under the new regulations. Because there was considerable controversy over the amendments, the Department of Environmental Protection did not issue its clarifying regulations until seven years later in 1990. The controversy over the regulations did not end once they were promulgated by the DEP Two prominent Boston real estate attorneys, in a 1992 law review article, challenged the validity of the 1990 regulations on several fronts. These critics of the 1990 regulations contended that the regulations were overbroad in their jurisdictional scope, inflexible, and created impermissible zoning-like restrictions. The critics also posed an interesting statute of limitations issue, noted but not fully addressed by the Boston Waterfront court, that could potentially undercut the Commonwealth\u27s ability to regulate tidelands that it had previously conveyed to another party. Because there has not been any litigation arising from the application of the 1990 regulations to a development project, many questions surrounding the regulations have gone unanswered by the courts. Given its far-reaching scope and size, however, the South Boston waterfront project may present an occasion for the courts to address some of the questions left unanswered by the Boston Waterfront decision and the regulatory scheme so dependent upon it. This Comment first discusses the history of tideland ownership in Massachusetts and the history of the public trust doctrine in the Commonwealth, which provide the legal foundation for Chapter 91. The major provisions of Chapter 91 and the controversial regulations promulgated in 1990 by the Division of Waterways of the Department of Environmental Protection are then discussed. This Comment concludes that the agency did not exceed its delegated authority in enacting the 1990 regulations that give administrative effect to the provisions of Chapter 91. Finally, to highlight the role the statute continues to play in the creation of living and working waterfront communities, this Comment examines the South Boston Seaport project as a specific example of the way in which Chapter 91 is administered at the agency level