The following comment letter was sent on August 17, 2007 to the State Department of Environmental Protection (DEP) from The Boston Harbor Association (THBA).

TBHA's comment letter responds to the recent filing of a development plan by The Fallon Company to develop an office tower on Fan Pier. The comment letter highlights the growing gap between the State's "Chapter 91" public access obligations and the City of Boston's BRA-sanctioned plans for Fan Pier. The City-approved plan would enable private and commercial spaces such as a second-floor, publicly inaccessible day-care center to fulfill the State's civic obligations defined by Chapter 91 as "Facilities of Public Accomodation".

The TBHA comment letter also highlights the insular civic and cultural engagement that has led Seaport insiders to control every square meter of civic and cultural space along the waterfront, from event programming to occupancy of available facilities.

THBA was the sole commenter calling for improvements to the Fan Pier project's fulfillment of its Chapter 91 obligations.

We will be uploading a more readable version of TBHA's comment letter as soon as it is made available.

SAND Comment

Despite the historic compact made by property owners of Boston's filled tidelands to fulfill reasonable public access accomodations, the present generation of property owners and planners make it abundantly clear that Boston ain't Sydney.

To visit a SAND thread of articles regarding the privatization of the water's edge and the ongoing gutting of Chapter 91 public access provisions, click here.

Mr. Ben Lynch
Waterways Program Chief
Department of Environmental Protection
One Winter Street
Boston, MA 02108

RE: Waterways Application No. W136201
Fan Pier Project, South Boston

Dear Mr. Lynch:

The Boston Harbor Association, a non-profit, public interest organization

founded in 1973 by the League of Women Voters and the Boston Shipping

Association to promote a clean, alive, and accessible Boston Harbor, has

been involved for more than two decades in the planning and review of

development proposals suggested for the Fan Pier along the South Boston


As a member of the South Boston Municipal Harbor Planning Committee, The

Boston Harbor Association (TBHA) was actively involved in discussions of

development scenarios of the South Boston waterfront which ultimately lead

to the Secretary's 6 December 2000 Decision on the South Boston Waterfront

District Municipal Harbor Plan. Subsequently, TBHA commented extensively on

the Consolidated Written Determination for the proposed Fan Pier project.

The Boston Harbor Association strongly supports the planned development of

the Fan Pier as approved by the Secretary's Decision on the South Boston

Municipal Harbor Plan and subsequently permitted in the Consolidated Written

Determination (CWD) issued by your office.

Most recently, as required in the Chapter 91 CWD, the Fallon Company, owner

of the Fan Pier site, submitted to your office the Chapter 91 license

applications for the following: a.) Phase I Public Realm Plan; b.) Parcel F;

c.) Parcel H; and d.) Parcel I. Since the parcels are all linked together

in Phase I construction, our comments on the four documents are included in

this one letter.

The project proponent is to be commended for reaching out to a number of

community and advocacy organizations well before the filing of the license

applications, and for incorporating many of the suggestions into his plans.

We highly commend the project proponent for honoring the commitments made by

the previous land owner during the Municipal Harbor Planning process, and

for being consistent with the Secretary's Decision and the Consolidated

Written Determination, thereby simplifying the review process.

As proposed, nearly 3 million square feet of development in nine buildings

on 20 acres (including water) will occur, of which approximately one million

square feet is office use, one million square feet is residential use, and

the remainder is hotel and retail uses in addition to the Institute of

Contemporary Art. A six-acre marina, permanent HarborWalk, Public Green,

and Fan Pier Park, as well as civic and cultural uses on the ground floor of

buildings are some of the public amenities to be phased in over the course

of development of the entire site.

The project proponent has filed documents for Phase I construction,

consisting of office and retail uses on Parcel F; residential and

civic/cultural uses on Parcel H; residential and hotel uses on Parcel I; and

the Phase I Public Realm Plan. Our comments follow:


Public Green: Consistent with the Consolidated Written Determination (CWD),

a 75,000 square foot Public Green will be completed upon completion of Phase

I development, with two-thirds of it to be built upon completion of the

first building during Phase I. The 1.75 acre Public Green is "designed as a

central gathering point", will include a "generally open lawn area with

perennial beds, trees and hardscape at its edges to allow for a variety of

uses", and "is envisioned as an area able to accommodate neighborhood

festivals, active recreation as well as passive recreation such as reading,

picnicking or simply enjoying the spectacular view of the proposed marina

and Boston Harbor beyond" (page 24, Phase I Public Realm Chapter 91

Application). To enhance public awareness of the landscaping, we suggest

small signs indicating the types of plantings in the perennial beds,

together with a plat of the plantings (these small signs and plat can be

seen in the plant beds at the adjacent John Joseph Moakley Federal


We strongly support the Public Green as a gathering space, potentially for

such events as "Taste of the Channel" sponsored by the Friends of Fort Point

Channel. We ask that the Management Plan indicate that the Public Green

will be made available free of charge for public gatherings such as the

"Taste of the Channel", First Night activities, viewing of fireworks, Tall

Ships, and other free events for the general public, similar to the

management of the Public Lawn of the adjacent John Joseph Moakley Federal

Courthouse. We further request that the Management Plan specifically

indicate that because the Public Green is part of the mandated Public Realm,

it will be available to the general public seven days a week, 24 hours a day

(page 24 of the application indicates that lighting will be provided to make

it a safe and inviting environment for pedestrians 24 hours per day), and

will not be closed to the general public for private functions, fundraisers,

weddings, corporate events, and/or any other events which bar the general

public and/or require a fee.

We ask for further clarification regarding "Pier Street Adjacent to the

Public Green" (pages 23 and 24 of the license application). Page 23

indicates that the "section of Pier Street adjacent to the Public Green

shall be designed, managed and maintained as a pedestrian-oriented way",

although we understand that there have been discussions indicating that Pier

Street is a road for automobiles, potentially with two-way traffic. We

strongly support "Pier Street adjacent to the Public Green has been designed

as truly an extension of the Public Green" (page 24 of the application) and

depicted as park/plaza space according to the legend in Attachment C, Figure

1: Updated Plan 4-22 of the license application, and ask that the Management

Plan clearly indicate that it is a pedestrian way and extension of the

Public Green.

Permanent HarborWalk: Currently, an interim ADA-compliant asphalt

HarborWalk segment with benches, trash receptacles, and four examples of

public art depicting the maritime industrial history of the Fan Pier allows

the public to walk from the beautiful permanent HarborWalk segment at the

Moakley Courthouse to the equally attractive HarborWalk segment at the

Institute of Contemporary Art. During Phase I, the interim HarborWalk will

be improved to a permanent condition.

However, the Public Realm License Application makes no mention of public art

nor interpretive signage along the permanent HarborWalk. We urge the project

proponent to walk the abutting HarborWalk segments on either side as well as

view the existing public art on the project site. The Moakley Courthouse

has imaginative historic ship depictions and several well-designed

interpretive signs along the HarborWalk, while the ICA has transparent

panels with poetry along the HarborWalk. At a minimum, the project

proponent should maintain the public art already on site if no additional

public art is contemplated, and provide interpretive signage consistent in

number and quantity with that found on the HarborWalk at the Moakley

Courthouse. Permanent HarborWalk signage is also required as a perpetual

condition, per the Order of Conditions approved by the Boston Conservation


Water-Dependent Use Zone: As required in the CWD, the project proponent

will maintain the entire Water-Dependent Use Zone free of

non-water-dependent uses and will make it accessible to the public 24 hours

a day (page 19 of application).

Water Transportation Facilities: In connection with the second building, a

water transportation dock of 160 feet by 30 feet with berths for at least

five water transit vessels will be built by the proponent, as required under

the Consolidated Written Determination, to be used solely for public water

transportation vessels except for interim uses approved by DEP prior to the

commencement of ferry service. We ask that the permitted usage of the dock

as required in the CWD be specifically included in the license so that the

dockmaster is familiar with the allowed uses of the dock.

The CWD requires a shade structure with a seating area and posted ferry

schedules. While the proponent's license application is silent on this

matter, we urge the Department to include this requirement in the license.

The CWD further requires an associated landside ticketing office and waiting

area as part of the second building build out, either in an interim or

permanent location. It is the proponent's intention to include a permanent

ticketing office and waiting area, together with permanent public rest rooms

for the general public, in Building H. However, if the second building is

not Building H, the project proponent will provide the ticketing office and

waiting area either in the lobby of one of the buildings or in a temporary

structure. In all instances, regardless of which building the ticketing

office, waiting area, and public rest rooms are located, we ask that

adequate and prominent exterior signage be provided, and that access to the

ticketing office, waiting room, and public rest rooms must be available

seven days a week from at least dawn to dusk or until the last water

transportation vessel, whichever is later, and in the case of the public

rest rooms, 24 hours a day as required in the CWD.

The CWD further requires that upon the issuance of the certificate of

occupancy for the second building, the proponent will begin the first of ten

annual payments for water transportation operations and services. The

proponent states that expenditures for water transportation infrastructure

will be credited against the required water transportation subsidy, up to $4

million. We strongly support this water transportation subsidy provision,

as additional development in the Seaport District will necessitate all modes

of public transportation to accommodate all the residents, workers and

visitors to the District.

The project proponent has agreed to provide a touch-and-go dock with a pump

out facility, consistent with the CWD requirements for the third building.

We strongly support such a dock, as well as the provision for a pump out

facility, particularly given Boston Mayor Thomas M. Menino's recent

announcement that Boston will be seeking a "No Discharge Area" designation

which will prohibit any treated or untreated discharge into Boston Harbor.

Completion of Civic/Cultural Use: The CWD requires the completion of at

least one of the required civic/cultural uses (ICA, Harbor Islands Gateway,

or Family Multi-Cultural Center) upon completion of the third building of

Phase I. As of December, 2006, this requirement has been satisfied with the

opening of the new Institute of Contemporary Art (ICA) on the Fan Pier.

Aside from an exceptional building, the Institute of Contemporary Art has

done an outstanding job of programming the space to allow the general public

maximum enjoyment and access to both Boston Harbor and to contemporary art.

Admission to the museum is free Thursday evenings, thanks to Target, as well

as free for up to 2 adults accompanied by a child 12 or under on the last

Saturday of each month, thanks to The Fuller Foundation and the JP Morgan

Chase Foundation.

In its first eight months, the ICA has already launched "HarborWalk Sounds",

a free music series performed by Berklee College of Music for all to enjoy

next to the HarborWalk. In conjunction with the Boston Harbor Islands

Partnership, the ICA commissioned four works of art as part of the "Art on

the Harbor Islands" exhibit located on four of the Boston Harbor Islands

through 8 October 2007.

Public Rest Rooms: The CWD requires that the first building provide at

least one rest room accessible to the public 24 hours a day, free of charge,

and regardless of any purchase of goods or services on the project site.

The proponent has agreed to provide a public rest room for the general

public in the ground floor of the first building built. We ask that the

license specify that adequate and prominent exterior signage will be

provided regarding the availability of the public rest room.

Public Realm Management Plan: We ask that copies of the draft Public Realm

Management Plan for Phase I development be provided to those commenters who

request a copy for comment. Besides describing the maintenance schedule and

standards, rules and regulations for the public realm areas, hours of

operation, and staffing, we ask that the plan detail a signage plan to

ensure the public's awareness of the available amenities required by the

CWD, such as public rest rooms and water transportation waiting area;

staffing and/or equipment such as computer monitors and Charlie card

machines for the water transportation ticketing and waiting area (up-to-date

schedules and information are required in the space); programming of the

Public Green for public festivals and other gatherings; and responsibilities

of the dock master.

Besides the operations and maintenance plan, we are particularly interested

in the snow management plan to ensure that water quality is not degraded by

snow removal activities. Because the dumping of snow into Boston Harbor is

prohibited, we ask that the proponent outline the disposal method which will

be used at the Fan Pier, and urge consideration of non-toxic snow melting



The Parcel F building will consist of a 16-floor office tower, street level

retail, and three levels of underground parking. The 493,000 sq. ft., 237

feet high building is located adjacent to the Public Green. We support the

uses in this building, and believe that the mix of ground floor restaurants,

cafes, and variety of shopping opportunities referred to by the proponent as

"lifestyle retail" will serve to enhance the destination value of this site.

The Consolidated Written Determination requires three parcels for

civic/cultural uses, with a minimum of 107,000 sq. ft. to be dedicated to

such uses. The new Institute of Contemporary Art on Parcel J satisfies part

of this requirement. The project proponent notes, "the remaining

requirement for civic/cultural uses is not less than 41,000 sq. ft., which

the CWD anticipates to be in Parcels D and H in approximately a 36%/64%

ratio" (page 5, Attachment A of Parcel F filing).

The project proponent notes that the Boston Children's Museum, the

designated civic/cultural user in Parcel H, has proposed as part of its

Family Multi-Cultural Center an early learning center with a day care

facility. The proponent further notes that there have been discussions

about potentially relocating the early learning center and day care facility

from Parcel H to the second floor of Parcel F (page 5, Attachment A of

Parcel F filing).

We do not believe that the day care facility, nor the location of what is to

be a civic/cultural use on the second floor without first floor access and

prominence, is consistent with the Secretary's 8 December 2000 Decision on

the City of Boston's South Boston Waterfront District. Specifically, the

Secretary's Decision states, "To fully activate the waterfront along Fan

Pier and Pier 4 as a public destination, the MHP now requires approximately

127,000 square feet of permanently dedicated civic and cultural space in

buildings along the water's edge" (page 9 of the Secretary's Decision). The

Secretary's Decision further notes, "a 30,000 sf new family multi-cultural

center in the first two floors of Parcel H, as described in a memo from the

BRA dated November 17, 2000" (page 28 of Secretary's Decision), and

envisioned that the public could easily access the civic/cultural use at the

ground level as they walk from the Public Green or the HarborWalk.

Relocating a civic/cultural use to the second floor of an office building

without any first floor access and without access on weekends and evenings

when the public is most likely to visit a civic/cultural use means that the

general public will not be easily able to access or even see the intended

civic/cultural use.

We ask that the Chapter 91 License not permit this use to satisfy the

civic/cultural use requirement in the Secretary's Decision. As we noted at

the public hearing, a civic/cultural use is a facility of public

accommodation (FPA), but not all FPAs are civic/cultural uses. In the

Commonwealth of Massachusetts, there are extremely stringent requirements

governing day care facilities to protect children from criminal elements as

well as in custody battles, so day care facilities do not welcome the public

into their facilities (even park/open space areas for day care centers must

be restricted to day care users only). We urge that the License emphasize

that the Boston Children's Museum is to provide a civic/cultural facility in

the form of a family multi-cultural center in space on the ground level so

that the public can easily access the facility from the Public Green or the


Parcel H: Residential/Civic/Cultural Uses

The Parcel H building will consist of residential/civic/cultural uses above

a three story underground parking facility adjacent to the Public Green.

The ground floor of the 276,000 sq. ft., 175 feet high building will contain

civic/cultural space, currently anticipated to be associated with the Boston

Children's Museum, as well as a ticket office and waiting area for the water

transportation facility and rest rooms available to the general public.

A significant change from the originally approved plan is the shift from

office to residential use of Parcel H. Originally, it had been anticipated

that both Parcel F and Parcel H, bordering the Public Green on each side,

would be office buildings. Public Green has been designed as the gathering

place for activities at the Fan Pier, from such events as "The Taste of the

Channel", to viewing area for fireworks displays, First Night activities,

and free performances to a major water transportation hub. Similar to Rowes

Wharf, these public activities and public gatherings, sometimes in the

evenings and weekends, are best separated from luxury condominiums by office


If the Department approves the change from office to residential use on

Parcel H, we ask the inclusion of disclosure statements in sales, ownership,

and leasing documents referencing the public activities proposed in the

Public Green and other parts of the Public Realm and watersheet. We ask

that all recorded deeds and all leases include the above disclosures, as

well as language similar to the following: "Each residential unit has been

designed in anticipation of these public activities, but no representation

is made that noise or other conditions related to public access and

water-dependent uses will not be experienced by unit residents."

To further reduce potential conflicts between the users of the Public Realm

and prospective residents, language similar to the following should be

included in all legal documents, including recorded deeds as well as in all

leases: "A unit resident shall not engage in prohibiting lawful public

access, use of the water transportation ticketing and waiting area, rest

rooms for the general public, a first and second floor civic/cultural use,

exterior public spaces, existing and/or nearby water-dependent uses and

activities. Furthermore, the management entity, or if relevant, condominium

association at Parcel H is prohibited from using any management entity

funds, or if relevant, condominium association funds to restrict lawful

public access, use of the water transportation ticketing and waiting area,

public rest rooms for the general public, a first and second floor

civic/cultural use, exterior public spaces, existing and/or nearby

water-dependent uses and activities."

Because the building will now be residences rather than offices as

originally proposed, the project proponent is requesting the option of

potentially relocating the Boston Children's Museum's civic/ cultural use

which it is defining as an early learning center and child care facility,

from the first two floors of the building to the second floor of Parcel F,

an office building.

Consistent with the recommendations of the Boston Redevelopment Authority

(BRA) as outlined in a 17 November 2000 memo to the state, The Boston Harbor

Association supported the Boston Children's Museum's civic/cultural use in

Building H for several reasons: a.) It provides continual activation of the

watersheet and water's edge starting from the marina next to Parcel J

(Institute of Contemporary Art) continuing through the first two floors of

Parcel H to the public transit dock near the Public Green and continuing

along the east side of Parcels D, E, and F to the tidal pool and Fan Pier

Park closest to the Moakley Courthouse; b.) Parcel H is immediately adjacent

to the Public Green, allowing the public a seamless connection between the

family multi-cultural facility in Parcel H and the abutting Public Green

without having to worry about any roadway in-between; c.) The water

transportation ticketing office and waiting area as well as the required

24-hour free rest rooms for the general public are located in Parcel H, and

locating the family multi-cultural facility in Parcel H creates a "hub" of

public facilities in the same building. Families and visitors to Boston

generally appreciate the convenience of clustering public facilities in one


Conversely, our experience with waterfront condominium associations and its

residents has been mixed. There are a number of residential complexes on

Boston's waterfront which have not encouraged and in certain instances,

worked to discourage public access and activities along the waterfront. By

removing the family multi-cultural facility from the first two floors of the

building, the critical mass of public facilities mandated in the CWD

disappears in what is now proposed to be a residential building. It is not

clear how welcoming the condominium association and its residents will be

towards 24-hour public rest rooms available to the general public, or the

water transportation ticketing and waiting area, and whether the condominium

association and/or its members will attempt to impose conditions on usage

and/or hours of operation (under the CWD, the rest rooms must be available

24 hours/day).

The project proponent has not indicated what will take the place of the

civic/cultural use on the first and second floors of the building, and how

the building will be made welcoming to the general public who use the public

facilities on the ground floor and the adjacent Public Green.

As noted above regarding Parcel F, the Boston Children's Museum's proposed

day care facility does not constitute a civic or cultural use, given the

type of use and given the stringent regulations governing day care centers

in the Commonwealth of Massachusetts.

Finally, it is not clear what hours the interior publicly accessible areas

will be available to the public. Page 18, Attachment A of Parcel H states,

"As part of the operations plan for civic/cultural space and the water

transportation ticketing office an operations and maintenance plan will be

developed consistent with the standards of this residential project.

Applicant will strive to have such facilities open to the public during

normal business hours at a minimum and later into the evening and weekends

as site density warrants."

Normal business hours for the water transportation ticketing and waiting

area and the civic/cultural use is insufficient and inconsistent with the

Secretary's Decision regarding the South Boston Municipal Harbor Plan. The

civic/cultural use, a family multi-cultural use facility operated by the

Boston's Children Museum, is designed for families, the majority of whom

will use the facility on weekends when family members are not working or in

school. Access to this facility needs to be seven days a week. Likewise,

the water transportation ticketing and waiting area also need to be open to

the public seven days a week, given the level of water transportation we are

seeing throughout the Harbor. It should be noted that the Institute of

Contemporary Art, the only building amidst parking lots on the Fan Pier

site, is open six days a week, with evening hours on Thursday and Friday

evenings. Since its opening in December, 2006, the Institute of

Contemporary Art has already surpassed projected attendance levels for its

first year.


The Parcel I building consists of a 511,000 sq. ft., 226 feet high combined

hotel and residential use. A 17 floor hotel/ residential tower will be

built on top of three levels of parking. Ground floor usage will include

hotel, restaurant, and retail space, with a separate modestly-sized

residential entry/elevator lobby.

We support the proposed uses at this site. We assume that the roadways,

garage entrance and exit, and hotel drop-off will be situated in such a way

so as to not adversely impact the safety or enjoyment of the general public

and families going to and from the Institute of Contemporary Art and the

Boston Children's Museum's civic/cultural use and open spaces north of

Parcel C.

According to the Parcel I filing, "The Applicant anticipates the use of

portions of the exterior Public Realm space (including publicly accessible

sidewalk space) which are adjacent to indoor restaurant spaces or associated

with stand alone kiosks or movable carts, for seasonal outdoor restaurant/

cafe use, charging patrons and customers for food and beverage served there

from, the reservation of such portions for patrons and customers of the

restaurant/cafe only, and the enclosure of such portions of the exterior

Public Realm space, during the period of seasonal operation, with the

minimum enclosure necessary to comply with the requirements of any license

for such restaurant/cafe issued under Chapter 138 for the service of

alcoholic beverages in such outdoor areas" (page 18, Attachment A of Parcel

I filing).

We strongly urge that the exterior seasonal cafe/restaurant be located where

there will be minimal interference with public access and with pedestrian

and bicycle activity, and that every attempt be made to avoid using

accessible (ADA-compliant) sidewalk space so that those who need

ADA-compliant space can access such.


Regarding certain technical matters, TBHA concurs with the project proponent

that DEP, in the issuance of a license for the Phase I Public Realm,

confirms that all such below grade structures are authorized by the Chapter

91 License. TBHA also concurs with the project proponent that Below Grade

Structures alone constructed on a parcel do not invoke the phasing schedule

for that parcel. TBHA further concurs with the project proponent that All

Grade Projections such as cornices, roof eaves, architectural decorations,

balconies, awnings, marquees and signs which project beyond the lot line as

approved by the CWD are authorized by the Chapter 91 License.

As required in the CWD for the first building, we ask that a Construction

Period Access Plan be provided to those commenters who request such so that

interested commenters can review the access plan proposed for the

construction period. At a minimum, the Construction Period Access Plan

should ensure that the existing HarborWalk on the Fan Pier project site, the

permanent HarborWalk at the Institute of Contemporary Art, and the Institute

of Contemporary Art are accessible throughout the period of construction,

except when the interim HarborWalk is being replaced by a permanent

HarborWalk segment. This is feasible, since Phase I construction is

occurring closest to Old Northern Avenue, and is consistent with the

construction period access plan filed by other waterfront projects, such as

the Boston Children's Museum and Russia Wharf, where full public access to

the HarborWalk in front of each property was maintained (and in the case of

Russia Wharf, continues to be maintained) during the construction period.

Sustainable Development: Consistent with Mayor Menino's mandate for

sustainable development, we strongly urge the project proponent to seek LEED

certification for all buildings built during Phase I construction.

Thank you for your consideration.


Vivien Li
Executive Director
The Boston Harbor Association

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