"The proposal is phenomenal, and this seemed like an opportunity to protect it and protect the process."

— State Representative Anthony W. Petruccelli, co-sponsor of legislation tucked in an unrelated budget bill without a public hearing, that (as reported in The Boston Globe below) would insulate a sprawling East Boston development - and perhaps many others in the future - from most legal challenges by groups that want to preserve access to the waterfront.


State Chapter 91 regulations were originally crafted to protect public access and rights to waterfront tidelands - areas of filled land that once were part of Boston Harbor. Tidelands include many of the piers along Boston’s coast and much of the land at the water’s edge. Once filled, tideland legislation allowed private ownership, but required that the public retain certain rights to access because the Harbor was a public asset. As time marches on, and Boston’s citizenry begins to believe that filled tideland is exclusive private property, the historic public rights of access are cast into the dustbin of history by developers, regulators and legislators.

To read about the Russia Wharf project, click here.
To read about Massport’s recently proposed exemption in East Boston, see article below.
To read about a Chapter 91 exemption crafted for the Hines/South Station project, click here.
To read about State Chapter 91 violations on Independence Wharf at 470 Atlantic Avenue, click here.
To read about public access enforcement at Battery Wharf, click here.

To read SAND’s comment letter on the BRA Municipal Harbor Plan, click here.

This story ran on page A1 of the Boston Globe on 8/20/2003.
© Copyright 2003 Globe Newspaper Company.

Rick Klein and Stephanie Ebbert, Globe Staff

The Legislature has slipped through a measure to insulate a sprawling East Boston development - and perhaps many others in the future - from most legal challenges by groups that want to preserve access to the waterfront.

The provision aims to speed through development at East Boston's Pier One, where a glittering waterfront housing project is planned. But if it's signed by Governor Mitt Romney, the measure could strip environmentalists, neighborhood activists, and tenants of virtually all their legal recourses after the state issues its final development and access regulations. Some environmental advocates fear the measure will allow state agencies to negotiate sweetheart deals with developers on public land, with no opportunity for the public or displaced businesses to object by filing legal challenges.

"It's totally inappropriate," said Stephanie Pollack, acting president of the Conservation Law Foundation. "It substitutes deal-making for regulation under the Public Waterfront Act. In effect, it slams the courthouse door shut."

The bill - sought by the two members of the Legislature from East Boston, Senate President Robert E. Travaglini and state Representative Anthony W. Petruccelli - is designed to help the Roseland Property Co. move forward with its Portside on Pier One project, a 585-unit upscale housing development near Maverick Square that will include retail space and a harbor walk. The law foundation sent a letter to Romney yesterday, urging him to veto the measure. The governor's spokeswoman, Shawn Feddeman, said Romney will review the proposal and decide this week whether to sign it. The measure was tucked into an unrelated budget bill without a public hearing. It passed Monday in informal House and Senate sessions, where legislative leaders announced that only noncontroversial matters would be considered. At the time, most attention was focused on the money in the budget bill that would go to back payments for court-appointed lawyers.

Travaglini declined to comment on the development provision yesterday. Petruccelli said that he and his Senate colleague felt the project was too important to their hometown to allow "frivolous lawsuits" to derail it now, with the state just weeks or months away from giving final approval. He said the preliminary plans approved by the state include extensive guarantees of public access, and of access to the pier by groups that use it for business purposes. "The proposal is phenomenal, and this seemed like an opportunity to protect it and protect the process," said Petruccelli, a Democrat. "It's gone as long as it really should. There's a fear among people in my community that the folks who are looking to put $100 million into the community would back off if it's forced to last longer."

Groups that now use the pier - tugboat operators, water taxi services, and boat builders - are negotiating with the developer and the state to maintain access to it. While they are hopeful the Department of Environmental Protection will work out a deal that's favorable to them, they have the option of legal appeals if they feel aggrieved. But this bill would mean most challenges along those lines would be tossed out immediately, said Pollack. Among the pier's tenants are the Boston Pilots, a group of professional seamen charged with guiding ships into and out of Boston Harbor. The pilots have been based on Pier One since the 1970s, and are looking for an agreement that will allow them to maintain something close to their current $40,000 annual rent. A lawyer for the group, Jamy Buchanan Madeja, said that even if Romney signs the bill, it could be tossed out in court because it appears narrowly crafted for a particular development. "This thing is full of holes," she said.

The 68-acre property is owned by the Massachusetts Port Authority and is scheduled to be leased by Roseland for 95 years, with the terms still to be determined. Sea Chain Marine of Hingham is on board to revamp the adjoining shipyard and marina.

Massport is also backing the bill, as part of its push to bring the process to a close quickly, said Jose Juves, a spokesman for the authority. Since 1999, Massport and other groups have held about 12 community meetings to hear from affected parties in East Boston, he said. A Roseland spokeswoman, Nancy J. Sterling, said the company is looking forward to the East Boston project but has not taken a position on the legislation passed Monday. New Jersey-based Roseland is also developing the Hingham Shipyard and the Overlook Ridge project along Route 1 on the Revere-Malden line, a 100-acre hotel and apartment development slated to be completed by next fall.

East Boston neighborhood activist Mary Ellen Welch expressed outrage over the change endorsed by the Legislature, saying everyone should have a right to appeals under environmental law. She and others in the community are concerned about the project's impact on traffic and gentrification.

"That's just wrong," Welch said. "That puts that developer and the Port Authority above the rules. It gives them such a huge exemption that every homeowner and other business person has to abide by. To put someone above the law like that or go around the law like that - it's money talking."

At issue is a 19th-century state law known as the Public Waterfront Act, which essentially states that property that was once underwater is owned by the public. In practice, it means that developers who wish to build on such property must make extensive concessions regarding public spaces and access, parks, and building heights.

Under current law, anyone who is unsatisfied with a state decision on public access and other issues on such property can ask a judge to overturn that decision on the grounds that it violates the Public Waterfront Act. But the bill that passed the Legislature on Monday would eliminate that act as a standard, thereby making it tougher for plaintiffs to get their cases considered by a judge, environmental activists say.

Instead, judges would rely on documents, known as "memorandums of understanding," that are worked out between public agencies, generally with extensive participation by the developer. Critics point out that these deals are crafted on a case-by-case basis, and so the standards in them shift with each development. That can leave opponents without a clear foundation to question the development.

"You can never get in front of a judge to say that we think the DEP decision undermines the Public Waterfront Act," said Pollack.

No one familiar with the East Boston project could point to potential plaintiffs, but recent years have brought challenges in other cases under the Public Waterfront Act.

For example, Stevan Goldin, a former Boston resident who now lives in Rockport, late last year won a settlement from developer Joseph Fallon, who is building a mixed-use complex on Massport-owned land in South Boston. To prevent his project from getting bogged down by appeals, Fallon agreed to contribute to several of Goldin's interests - $25,000 toward a museum commemorating Boston's West End, and $10,000 for a study of air pollution in Boston Harbor. Neither Goldin nor Fallon could be reached yesterday.

Goldin has also appealed the state's approval of the nearly 3 million-square-foot Fan Pier development proposal, though that project has been delayed because of market conditions. Development critics have gone to the courts to win other concessions as well. Last year, the law foundation threatened to appeal Fallon's apartment and hotel complex on Massport land in South Boston, in a successful effort to compel Massport to extend leases to fishing-related businesses. The law foundation also reached a settlement by appealing developer Les Marino's construction of an unauthorized 14th floor on an Independence Wharf project.

This story ran on page A1 of the Boston Globe on 8/20/2003.
© Copyright 2003 Globe Newspaper Company.

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