Navy Yard Four Associates, LLC v. Department of Environmental Protection , 88 Mass. App. Ct. 213 ( 2015 )

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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.
1
Commonwealth. We acknowledge the amicus curiae brief
filed by the Conservation Law Foundation.
2
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
3
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 judgment
invalidating DEP's relevant regulations defining "Commonwealth
[t]idelands." Based on the property's history, the applicable
statutory and regulatory framework, and the public trust
doctrine, we reach the same conclusions and therefore affirm the
Superior Court amended judgment before us.
1. Background. From 1800 to 1979, NYF's property was part
of a larger parcel owned by the Federal government, originally
purchased to establish the Charlestown Navy Yard. See St. 1800,
c. 26 (May session). To that end, the United States government
lawfully filled and constructed piers and buildings on the
subject tidelands. After the closure of the shipyard, the
Massachusetts Legislature, on July 22, 1978, passed a special
Act (the Navy Yard Act) to facilitate the transfer of Navy Yard
land to, in part, the Boston Redevelopment Authority (BRA).
St. 1978, c. 556. The Federal government deeded a portion of
the land, including what became NYF's property, to the BRA in
May of 1979. Since that period, the BRA has redeveloped the
area for multiple uses under licenses issued pursuant to c. 91,
4
including marinas, condominiums, offices, and water
transportation facilities.2
In March, 2003, LDA Acquisition, LLC (LDA), submitted a
waterways license application for the property to DEP pursuant
to G. L. c. 91 and its implementing regulations at 310 Code
Mass. Regs. §§ 9.01 et seq. (Waterways Regulations). At that
time, the BRA still owned the property and LDA was its lessee.
LDA's license application sought approval to build the
Harborview project, as described above. On February 18, 2004,
DEP issued its written determination on LDA's license
application, wherein it approved LDA's proposed Harborview
project. It determined the property to fall on "Commonwealth
[t]idelands" as "the site is owned by the [BRA], a public
agency." It also determined that the project, as conditioned,
complied with all applicable standards of the Waterways
Regulations, including the special standards for nonwater-
dependent use projects.
In January, 2005, Navy Yard Four Associates Limited
Partnership notified DEP that it had taken over the project. On
May 26, 2005, the BRA conveyed the property to Navy Yard Four
Associates Limited Partnership. Thus, the waterways license
issued on June 11, 2005, to Navy Yard Four Associates Limited
2
Currently, the United States Constitution, the oldest
commissioned United States naval vessel, is docked at the former
Charlestown Navy Yard.
5
Partnership rather than to LDA. In October, 2005, Navy Yard
Four Associates Limited Partnership then conveyed the property
to NYF, the plaintiff, for nominal consideration.3
In addition to approving NYF's plans to construct
Harborview, the DEP license requires in pertinent part that "at
least seventy-five percent of the ground floor of the building
be maintained as Facilities of Public Accommodation [FPAs] as
defined at 310 [Code Mass. Regs. §] 9.02, including interior
public pathways, public restrooms, and pathways within the
footprint of the building but open to the exterior."4 This
requirement stems from 310 Code Mass. Regs. § 9.53 (2000),5 which
requires FPAs for all "nonwater-dependent use project[s] that
include[] fill or structures on Commonwealth tidelands."6
3
The record demonstrates that NYF and Navy Yard Four
Associates Limited Partnership are one and the same.
4
The Waterways Regulations define an FPA in part as "a
facility at which goods or services are made available directly
to the transient public on a regular basis, or at which
advantages of use are otherwise open on essentially equal terms
to the public at large (e.g., patrons of a public restaurant,
visitors to an aquarium or museum), rather than restricted to a
relatively limited group of specified individuals (e.g., members
of a private club, owners of a condominium building)." 310 Code
Mass. Regs. § 9.02 (2000).
5
Throughout this opinion, our citation to any section of
the Waterways Regulations is to the applicable version in effect
at the time of the relevant DEP determination (i.e., the
original licensing or the proposed license amendment).
6
The amount of FPA space "shall be at least equal in amount
to the square footage of all Commonwealth tidelands on the
6
Between 2005 and 2007, NYF constructed Harborview, and as
required by NYF's license, the ground floor of the Harborview
building includes 32,225 square feet dedicated to FPAs.
Beginning in 2006, NYF and its predecessors actively marketed
the FPA space, but by late 2009 NYF had yet to find appropriate
tenants.
In 2006, the Office of Coastal Zone Management and DEP
completed the "Massachusetts Chapter 91 Mapping Project," which
established the presumptive historic high and low water marks
along the Massachusetts shore for purposes of DEP's jurisdiction
under c. 91. With the new information provided by the mapping
project, it became clear that the entire footprint of the
building lies between the historic high water mark and the
historic low water mark.7
project site within the footprint of buildings containing
nonwater-dependent facilities of private tenancy," 310 Code
Mass. Regs. § 9.53(2)(c)1 (2000), though space may also be
provided for utility and access facilities that must be located
on the ground floor in order to serve facilities of private
tenancy located on other floors, provided that these "[u]pper
[f]loor [a]ccessory [s]ervices" do not occupy more than twenty-
five percent of the building footprint. 310 Code Mass. Regs.
§ 9.02 (1994).
7
"Historic High Water Mark means the high water mark which
existed prior to human alteration of the shoreline by filling,
dredging, excavating, impounding, or other means," while
"Historic Low Water Mark means the low water mark which existed
prior to human alteration of the shoreline by filling, dredging,
excavating, impounding or other means." 310 Code Mass. Regs.
§ 9.02 (2000).
7
In September, 2009, NYF submitted an application to DEP to
amend its waterways license, seeking (1) a reduction of the
amount of floor area required to be used as FPAs from 32,225
square feet to 12,570 square feet, and (2) approval for
flexibility in where to locate the FPAs on the ground floor of
the building. NYF's application noted that Harborview rested on
filled "tidal flats" -- the area between the historic high and
low water marks -- and argued that though the property was
initially classified as "Commonwealth [t]idelands" due to the
BRA's ownership, its classification should change given that NYF
is a private entity.
Pursuant to its regulations, DEP reviewed NYF's
application, held a public hearing, and considered the company's
response to comments. On November 9, 2010, DEP issued a written
determination denying the requested amendment. As stated in the
determination's findings, this decision was based on the fact
that when the original license was granted, the property was on
previously filled "Commonwealth [t]idelands," and that "[o]nce
held by the Commonwealth, the type of tidelands can't be changed
back without a specific act of the [L]egislature."
On November 24, 2010, NYF requested an adjudicatory hearing
before DEP to challenge the denial of its license amendment
application. On cross motions for summary decision, the
presiding officer issued a recommended final decision on
8
November 21, 2011, affirming DEP's written determination, which
the DEP Commissioner adopted in his final decision on November
22, 2011.
As a result, NYF filed a complaint in Superior Court
seeking judicial review of DEP's final decision pursuant to
G. L. c. 30A, § 14, and a declaration that certain provisions of
the Waterways Regulations are ultra vires.8 After holding a
hearing on NYF's motions for judgment on the pleadings and for
partial summary judgment, a judge denied the motions, affirming
DEP's final decision and denying declaratory relief in a written
memorandum of decision and order. NYF appeals from the
resulting amended judgment.
2. Discussion. A. Public trust doctrine. NYF's claim
implicates our public trust doctrine, and therefore, "[t]o
resolve this dispute we must consider in historical perspective
the allocation of rights among private parties, the
Commonwealth, and the public to use, own and enjoy one of the
Commonwealth's most precious natural resources, its shore."
Boston Waterfront Dev. Corp. v. Commonwealth, 378 Mass. 629, 630
(1979) (Boston Waterfront). See Arno v. Commonwealth, 457 Mass.
8
NYF also claimed that the Commonwealth had relinquished
all of its rights, title, and interest to the property as a
result of the Navy Yard Act, and that the Federal government had
adversely possessed the property, thereby extinguishing any
interests of the Commonwealth in the property. Later, NYF
voluntarily dismissed these counts of its complaint. Thus these
issues are not before us.
9
434, 449 (2010) ("Throughout history, the shores of the sea have
been recognized as a special form of property of unusual value;
and therefore subject to different legal rules from those which
apply to inland property"), quoting from Boston Waterfront,
supra at 631.
Under common law, private ownership in coastal land could
historically extend only landward of the mean high water mark.
Arno v. Commonwealth, supra. Seaward of the high water mark,
ownership remained with "the Crown [and eventually the
Massachusetts Bay Colony, followed by the Commonwealth,] but
subject to the rights of the public to use the coastal waters
for fishing and navigation." Ibid., quoting from Opinion of the
Justices, 365 Mass. 681, 684 (1974). This changed, however,
with the Colonial Ordinance of 1641-1647, which authorized the
transfer of title to property between the high and low water
marks -- the tidal flats -- to private parties, though this
title has always had "strings attached." Arno v. Commonwealth,
457 Mass. at 449, quoting from Boston Waterfront, 378 Mass. at
637. While "[g]reater public rights exist in submerged lands,
the land lying seaward of the low water mark," Arno v.
Commonwealth, supra at 450, both tidal flats and submerged lands
are referred to collectively as "tidelands," id. at 436, and
"[a]ll tidelands below [the historic] high water mark are
subject to [the public trust doctrine]." Trio Algarvio, Inc. v.
10
Commissioner of Dept. of Envtl. Protection, 440 Mass. 94, 97
(2003).
General Laws c. 91, the Waterways Act, represents the
modern embodiment of the public trust doctrine, and "governs
. . . water- and nonwater-dependent development in tidelands and
the public's right to use those lands." Moot v. Department of
Envtl. Protection, 448 Mass. 340, 342 (2007). As such, those
parties seeking to put tidelands to either water- or nonwater-
dependent use -- e.g., filling tidelands, constructing or
extending wharves, piers, dams, bridges or other structures --
must first obtain a license pursuant to c. 91. DEP administers
this licensing program, as "[t]he Legislature has designated DEP
as the agency charged with responsibility for protecting public
trust rights in tidelands through the c. 91 licensing program."
Alliance to Protect Nantucket Sound, Inc. v. Energy Facilities
Siting Bd., 457 Mass. 663, 678 (2010). See G. L. c. 91, § 2.
In 1983, the Legislature made numerous material amendments
to c. 91. See St. 1983, c. 589, § 21. Foremost for our
purposes, the Legislature added several definitions to its
waterways statutory scheme that are controlling to this day.
First, the Legislature defined "[t]idelands" as "present and
former submerged lands and tidal flats lying below the mean high
water mark." G. L. c. 91, § 1. Next, the Legislature clarified
the meanings of "Commonwealth tidelands" and "[p]rivate
11
tidelands." "Commonwealth tidelands" are "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," while "[p]rivate tidelands" are those "held by
a private party subject to an easement of the public for the
purposes of navigation and free fishing and fowling and of
passing freely over and through the water." Ibid.
Consistent with the Legislature's delegation of authority
to DEP to protect the public trust, see G. L. c. 91, §§ 2, 10,
18, the agency first promulgated the Waterways Regulations in
1990 to effectuate the Waterways Act's purposes. 310 Code Mass.
Regs. §§ 9.01 et seq. These regulations, which were submitted
to the Legislature for review in accordance with the statute's
1983 amendments, see G. L. c. 91, § 18, expounded on the key
definitions described by the statute. Although DEP's
definitions of "[t]idelands"9 and "[p]rivate [t]idelands"10
9
"Tidelands" are "present and former submerged lands and
tidal flats lying between the present or historic high water
mark, whichever is farther landward, and the seaward limit of
state jurisdiction. Tidelands include both flowed and filled
tidelands, as defined in [this section]." 310 Code Mass. Regs.
§ 9.02 (1994).
10
"Private [t]idelands" are defined as "tidelands held by a
private person subject to an easement of the public for the
purposes of navigation and free fishing and fowling and of
passing freely over and through the water." 310 Code Mass.
Regs. § 9.02 (2000).
12
largely track the language of the statute, DEP further expressly
defined "Commonwealth [t]idelands" to mean "tidelands held by
the Commonwealth, or by its political subdivisions or a quasi-
public agency or authority, in trust for the benefit of the
public; or tidelands held by a private person by license or
grant of the Commonwealth subject to an express or implied
condition subsequent that it be used for a public purpose"
(emphasis supplied). 310 Code Mass. Regs. § 9.02 (1994).
B. DEP regulations. On appeal, NYF challenges DEP's
Waterways Regulations, arguing that the agency's definition of
"Commonwealth [t]idelands" exceeds its regulatory authority and
violates the public trust doctrine. NYF challenges DEP's
interpretation of both parts of the statutory definition: (1)
which tidelands may be attributed to "the Commonwealth," and (2)
which agencies or political subdivisions constitute "the
Commonwealth." NYF asserts that only present or former
submerged lands may be classified as "Commonwealth [t]idelands"
and therefore subjected by DEP to the FPA requirements, and that
including political subdivisions or quasi public agencies such
as the BRA under the umbrella of "the Commonwealth" is
inconsistent with the language of c. 91.
When considering the validity of lawfully promulgated
regulations, we utilize a two-part test. "Using conventional
tools of statutory interpretation, we first consider 'whether
13
the Legislature has spoken with certainty on the topic in
question, and if we conclude that the statute is unambiguous, we
give effect to the Legislature's intent.'" Biogen IDEC MA, Inc.
v. Treasurer & Receiver Gen., 454 Mass. 174, 186 (2009)
(citation omitted). However, "if the Legislature has not
directly addressed the issue and the statute is capable of more
than one rational interpretation, we proceed to determine
whether the agency's interpretation may 'be reconciled with the
governing legislation.' . . . The ultimate question is whether
the policy embodied by the agency's interpretation is
reasonable." Id. at 187, quoting from Goldberg v. Board of
Health of Granby, 444 Mass. 627, 633 (2005). See G. L. c. 30A,
§ 14(7)(a)-(d). Although an agency may only exercise "the
powers and duties expressly conferred upon it by statute and
such as are reasonably necessary to carry out its mission,"
Commonwealth v. Maker, 459 Mass. 46, 50 (2011) (citation
omitted), a plaintiff "challenging the validity of an agency's
regulations has a formidable burden." Biogen IDEC MA, Inc. v.
Treasurer & Receiver Gen., 454 Mass. at 187. After reviewing
the challenge to DEP's regulatory definitions, we conclude that
NYF has not satisfied this burden.
i. Commonwealth tidelands may include tidal flats.
Although c. 91, § 1, expressly defines "[t]idelands" as "present
and former submerged lands and tidal flats lying below the mean
14
high water mark," NYF maintains that the statutory phrase
"Commonwealth tidelands" only includes present and former
submerged lands, not tidal flats.
Of course, "the language of the statute is the principal
source of insight into the legislative intent," Acme Laundry Co.
v. Secretary of Envtl. Affairs, 410 Mass. 760, 770 (1991), and
"[t]he Legislature must be presumed to have meant what the words
plainly say." Condon v. Haitsma, 325 Mass. 371, 373 (1950).
Here, the text of the Waterways Act clearly states that
tidelands are "present and former submerged lands and tidal
flats lying below the mean high water mark." G. L. c. 91, § 1.
The very next definitions listed are those for "Commonwealth
tidelands" and "[p]rivate tidelands" (emphases supplied), which
suggests that both of these definitions incorporate the earlier
definition of "tidelands," and therefore apply to both submerged
lands and tidal flats. See Commonwealth v. Hilaire, 437 Mass.
809, 816 (2002) ("When the Legislature uses the same term in the
same section, or even in different statutory sections, the term
should be given a consistent meaning throughout"); Commonwealth
v. Raposo, 453 Mass. 739, 746 (2009).
The purpose behind c. 91 also supports DEP's
interpretation. "General Laws c. 91 sets out to 'preserve and
protect,' under [DEP's] watch, the public's rights in
tidelands." Moot v. Department of Envtl. Protection, 448 Mass.
15
at 347. As explained previously, c. 91 represents the modern
iteration of the public trust doctrine. This public trust has
always applied to both submerged lands and tidal flats, as both
types of shore land were recognized as special forms of property
with unusual value. See Trio Algarvio, Inc. v. Commissioner of
Dept. of Envtl. Protection, 440 Mass. at 97; Arno v.
Commonwealth, 457 Mass. at 449. Although a distinction between
submerged lands and tidal flats is recognized under the
doctrine, with submerged lands entitled to more public
protection, id. at 450, tidal flats are still of significant
public concern and are not "private" in the traditional sense,
as NYF appears to contend. Rather, a categorical exclusion of
all tidal flats from the statutory definition of "Commonwealth
tidelands," regardless of ownership, undermines the public
rights and interest in this special form of property.
In light of the statutory language and purpose, DEP's
interpretation of "Commonwealth [t]idelands" to include both
submerged lands and tidal flats is reasonable and entitled to
deference. See Biogen IDEC MA, Inc. v. Treasurer & Receiver
Gen., 454 Mass. at 187; Goldberg v. Board of Health of Granby,
444 Mass. at 633.
ii. Definition of "Commonwealth." NYF next challenges
DEP's regulatory definition of "Commonwealth" in the phrase
"Commonwealth [t]idelands," which expressly includes the
16
Commonwealth's political subdivisions and quasi public agencies
or authorities. 310 Code Mass. Regs. § 9.02. NYF correctly
contrasts the regulation with c. 91, which contains no such
express reference to political subdivisions or quasi public
agencies or authorities within either its definition of
"Commonwealth tidelands" or "[p]rivate tidelands."11 The
statute, however, specifies only two categories of tidelands:
"Commonwealth tidelands" and "[p]rivate tidelands," thereby
requiring a choice to be made between the two when classifying
the property of political subdivisions and quasi public agencies
or authorities. "Private tidelands" are defined by statute as
"tidelands held by a private party . . . ." The ordinary
meaning of "private" is "[r]elating or belonging to an
individual, as opposed to the public or the government."
Black's Law Dictionary 1315 (9th ed. 2009). Contrast Lafayette
Place Assocs. v. Boston Redev. Authy., 427 Mass. 509, 532 (1998)
11
While G. L. c. 91, § 38, as appearing in St. 2010,
c. 309, § 2, goes on to include both "the commonwealth" and "its
political subdivisions" in the definition of "[c]laimant" as
used in §§ 38 to 48 of the statute (concerning abandoned
vessels), this does little to fill the gap left in the
definitions of "Commonwealth tidelands" and "[p]rivate
tidelands" in § 1. Merely applying the principle that when
"specific language appears in one section of a statute and is
absent from a related section, the absent language should not be
read into the provision from which it is missing," Tilcon Mass.,
Inc. v. Commissioner of Rev., 30 Mass. App. Ct. 264, 269 (1991),
as NYF urges us to do, fails to provide a workable solution as
it would prevent the contested category from meeting either the
"Commonwealth" or "[p]rivate" tideland definitions.
17
("The BRA is certainly a public body, a governmental entity of
some sort performing public functions"). Interpreting "private
party" under the statute to include a political subdivision or
quasi public agency runs counter to the plain meaning of
"private." See Telesetsky v. Wight, 395 Mass. 868, 872 (1985)
(statute "must be afforded its plain meaning").
The plain meaning of "Commonwealth" in this context is less
obvious. Whether the reference in c. 91 to "Commonwealth
tidelands" is meant to include tidelands held by "political
subdivisions or a quasi-public agency or authority" is not
without ambiguity. We recognize that "[s]tatutory silence, like
statutory ambiguity, often requires that an agency give clarity
to an issue necessarily implicated by the statute but either not
addressed by the Legislature or delegated to the superior
expertise of agency administrators." Goldberg v. Board of
Health of Granby, 444 Mass. at 634. See Middleborough v.
Housing Appeals Comm., 449 Mass. 514, 523 (2007). "The ultimate
question is whether the policy embodied by the agency's
interpretation is reasonable." Biogen IDEC MA, Inc. v.
Treasurer & Receiver Gen., 454 Mass. at 187. 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
18
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. See ibid.
DEP's interpretation is also buttressed by the process
prescribed for DEP's rulemaking authority, which reserves
oversight of promulgated regulations for the Legislature. G. L.
c. 90, § 18. "That the Legislature did not act to challenge the
[agency's] regulations lends weight to the conclusion that the
[agency] acted within its delegated authority in promulgating
them." MRI Assocs., Inc. v. Department of Pub. Health, 70 Mass.
App. Ct. 337, 342 n.8 (2007). Compare Wilson v. Commissioner of
Transitional Assistance, 441 Mass. 846, 853-854 (2004).
C. DEP's decision not to grant the amendment. Although we
have rejected NYF's challenge to the validity of the
regulations, we must still address DEP's particular application
of the statute and regulations to NYF's proposed license
amendment. Generally, "the application of a regulation to the
particular facts of a case is within an agency's discretion and
we accord an agency's interpretation of its own regulations
substantial deference." Biogen IDEC MA, Inc. v. Treasurer &
Receiver Gen., 454 Mass. at 184. The court will only overturn
19
the agency's action "if it was arbitrary, unreasonable or
inconsistent with the plain terms of the regulation itself."
Ibid. In our review, we exercise considerable restraint, as
"[t]he court should be slow to decide that a public board has
acted unreasonably or arbitrarily and should search for some
ground which reasonable [people] would regard as a proper basis
for the agency's action." Fioravanti v. State Racing Commn., 6
Mass. App. Ct. 299, 302 (1978). We conclude that DEP's
application of its regulations and denial of NYF's proposed
license amendment was not arbitrary or capricious, an abuse of
discretion, or otherwise not in accordance with law. G. L.
c. 30A, § 14(7)(g).
During the time the BRA owned the property, from 1979 until
2005, the property's tidelands qualified as "Commonwealth
tidelands" due simply to the BRA's ownership. As a quasi public
authority of a political subdivision of the Commonwealth, it
falls under the umbrella of "Commonwealth" for the purpose of
waterways licensing.12 This is reflected in DEP's February,
12
"The BRA is both a 'redevelopment authority' under G. L.
c. 121B, § 4, and an 'urban renewal agency' under G. L. c. 121B,
§ 9. Additionally, it serves as the planning board for the city
of Boston and monitors private development under G. L. c. 121A."
Mahajan v. Department of Envtl. Prot., 464 Mass. 604, 606 (2013)
(footnote omitted). Of its many enumerated powers, "[p]erhaps
the most significant power granted to the BRA is the power of
eminent domain." Ibid. See Lafayette Place Assocs. v. Boston
Redev. Authy., 427 Mass. at 533 (classifying BRA as a public
employer).
20
2004, written determination regarding the property in reference
to the original license -- "[t]he tidelands are categorized as
Commonwealth Tidelands because the site is owned by the Boston
Redevelopment Authority, a public agency" -- and as noted by
both parties, the Harborview project was designed with this
categorization in mind.13
The conveyance of the property from the BRA to NYF's
predecessor in interest and then to NYF, both private entities,
did not change the classification of the tidelands as
"Commonwealth [t]idelands" for two reasons. First, once the
property was conveyed to NYF, the waterways license was
automatically transferred to NYF pursuant to 310 Code Mass.
Regs. § 9.23, which transferred all obligations and
responsibilities under the license to the new owner, including
the FPA requirements.14 While DEP has the authority to renew and
13
As the original determination observes, "The entire site
lies on filled Commonwealth Tidelands and the project has been
planned to comply with the appropriate dimensional and use
limitations of the applicable Waterways Regulations."
14
Under 310 Code Mass. Regs. § 9.23(1) (1996),
"Unless otherwise provided in the license, a valid license
shall run with the land and shall automatically be
transferred upon a change of ownership of the affected
property within the chain of title of which the license has
been recorded. All rights, privileges, obligations, and
responsibilities specified in the license shall be
transferred to the new landowner upon recording of the
changed ownership."
21
amend licenses, 310 Code Mass. Regs. §§ 9.24, 9.25 (1996), DEP
is not at liberty to transform the nature of the property from
"Commonwealth" to "private" tidelands or extinguish the public's
rights in the property. "[O]nly an act of or an express
delegation by the Legislature could extinguish the public's
rights in the parcel." Arno v. Commonwealth, 457 Mass. at 448.15
The Legislature has taken no such action for the property in
question.
Secondly, when NYF gained title to the property, it did so
"subject to an express or implied condition subsequent that it
be used for a public purpose." 310 Code Mass. Regs. § 9.02
(1996) (definition of "Commonwealth [t]idelands"). This
contention is supported by the deed from the BRA to NYF's
predecessor in interest. The deed incorporates a "Land
Disposition Agreement" (agreement) that explicitly includes the
FPA requirements now contested by NYF among other conditions
Additionally, although it was LDA, the BRA's tenant, that
originally applied for the license, under the regulations
"[a]pplicant means any person submitting a license or permit
application or other request for action by the [DEP] pursuant to
310 [Code Mass. Regs. §] 9.00, and shall include the heirs,
assignees, and successors in interest to such person" (emphasis
supplied). 310 Code Mass. Regs. § 9.02 (1996). Thus, Navy Yard
Four Limited Partnership (NYF's predecessor) occupied LDA's
shoes with respect to the license application.
15
This requirement applies to both tidal flats and
submerged lands. Arno v. Commonwealth, 457 Mass. at 452 ("The
process of divesting the public of its rights in tidal flats
also requires an act of the Legislature").
22
stemming from the classification of the property as lying on
"Commonwealth [t]idelands." Furthermore, the deed establishes
an explicit condition subsequent and right of reentry on behalf
of the BRA if NYF fails to comply with the conditions contained
in the agreement. While the BRA eventually came to support
NYF's amendment application, and NYF argues that it and the BRA
may amend this agreement at any time, the BRA, like DEP,
"[can]not extinguish forever claims that [it] was not free to
settle in the first place." Arno v. Commonwealth, 457 Mass. at
453.
Lastly, NYF argues that the classification of its property
as lying on "Commonwealth [t]idelands" contradicts the
presumptions embedded in DEP's definitions of both "Commonwealth
[t]idelands" and "[p]rivate tidelands."16 The presumptions in
16
The Waterways Regulations state that in applying the
definition of "Commonwealth [t]idelands," DEP
"shall act in accordance with the following provisions:
(a) [DEP] shall presume that tidelands are Commonwealth
tidelands if they lie seaward of the historic low water
mark or of a line running 100 rods (1650 feet) seaward of
the historic high water mark, whichever is farther
landward; such presumption may be overcome only if [DEP]
issues a written determination based upon a final judicial
decree concerning the tidelands in question or other
conclusive legal documentation establishing that,
notwithstanding the Boston Waterfront decision of the
Supreme Judicial Court, such tidelands are unconditionally
free of any proprietary interest in the Commonwealth; (b)
[DEP] shall presume that tidelands are not Commonwealth
tidelands if they lie landward of the historic low water
mark or of a line running 100 rods (1650 feet) seaward of
23
question essentially hold that if tidelands fall landward of the
historic low water mark, as with the Harborview project, DEP
will presume the tidelands in question are private tidelands and
not Commonwealth tidelands. This presumption may be overcome,
however, by a "showing that such tidelands . . . are not held by
a private person." (See note 16, supra.) NYF argues that DEP
has not made this showing, as NYF is a private entity. Of
course, at the time of the licensing determination, the property
was held by the BRA, a public entity, and the license, including
its obligations, was transferred to NYF as described above.
DEP's application of the regulations likewise recognizes the
express language of the statute -- that private entities may
the historic high water mark, whichever if [sic] farther
landward; such presumption may be overcome only upon a
showing that such tidelands, including but not limited to
those in certain portions of the Town of Provincetown, are
not held by a private person."
310 Code Mass. Regs. § 9.02 (1994). The regulatory definition
of "[p]rivate [t]idelands" specifies that DEP
"shall presume that tidelands are private tidelands if they
lie landward of the historic low water mark or of a line
running 100 rods (1650 feet) seaward of the historic high
water mark, whichever is farther landward; such presumption
may be overcome upon a showing that such tidelands,
including but not limited to those in certain portions of
the Town of Provincetown, are not held by a private person
or upon a final judicial decree that such tidelands are not
subject to said easement of the public [for navigation,
fishing, fowling, and passing freely over and through the
water]."
310 Code Mass. Regs. § 9.02 (2000).
24
hold "Commonwealth tidelands" subject to an implied or explicit
condition subsequent that the property be used to further a
public purpose. G. L. c. 91, § 1. Such express statutory
language and categorization overrules the ordinary regulatory
presumptions as well. In sum, DEP's application of the
statutory and regulatory requirements was a reasonable and
proper basis for the denial of NYF's requested license
amendment. See Teamsters Joint Council No. 10 v. Director of
Dept. of Labor and Workforce Dev., 447 Mass. 100, 106 (2006)
(reasonably proper agency decision is not arbitrary or
capricious).
3. Conclusion. For the above stated reasons, we affirm
the amended judgment in favor of DEP.
So ordered.