Mahajan vs. Department of Environmental Protection

Mass. Supreme Judicial Court, 464 Mass. 604, March 15, 2013: Public pavilion on land taken for urban renewal is not covered by Mass. Constitution’s environmental protection provision.

This case concerns the state’s oversight and control of the use of what has been a public space on land owned by the Boston Redevelopment Authority (BRA).  In 1964 the BRA, in its role as an urban renewal agency, adopted an urban renewal plan on certain Boston waterfront land including Long Wharf, which projects into Boston Harbor. The plan listed a variety of goals, one of which was “[t]o provide public ways, parks and plazas which encourage the pedestrian to enjoy the harbor and its activities.” In 1970, the BRA took Long Wharf (and other land) by eminent domain and continues to hold title. Long Wharf is a designated national historic landmark and now has multiple uses including water transportation, public transportation, hotels, retail establishments, restaurants and a portion of the Boston Harborwalk, a pedestrian walkway that lines the waterfront. The BRA built an open-air brick structure at the seaward end of the property known as Long Wharf Pavilion, open to the public.

In 2008 the BRA proposed to redevelop and expand the Pavilion and lease most of it to a private restaurant, while still allowing public use of some of it.  Because Long Wharf is located on filled tidelands, the BRA was required to obtain a so-called chapter 91 license from the state Department of Environmental Protection (DEP). The DEP issued the license. After exhausting administrative appeals, plaintiffs (ten residents of Boston) challenged the issuance of the chapter 91 license in court, arguing that the license should not have been issued without the DEP first obtaining a two-thirds roll call vote of each branch of the state legislature under article 97 of the Massachusetts Constitution.

Article 97 is the provision of the state Constitution that codifies certain environmental rights of the people of Massachusetts and declares “the protection of the people in their right to the conservation, development and utilization of the agricultural, mineral, forest, water, air and other natural resources is hereby declared to be a public purpose.” Art. 97 goes on to say, “Lands and easements taken or acquired for such purposes shall not be used for other purposes or otherwise disposed of except by laws enacted by a two-thirds vote, taken by yeas and nays, of each branch” of the legislature. (Emphases added.)

The plaintiffs contended that the Pavilion was subject to art. 97 and that the issuance of the chapter 91 license by DEP improperly “disposed” of art. 97 land without a legislative vote.

The lower court judge found for the plaintiffs that the 1964 urban renewal plan “aimed to create parkland, open space, and a means of utilizing and enjoying the harbor,” that these were art. 97 purposes and therefore the land taken pursuant to the plan is subject to art. 97. The judge further held that issuing the chapter 91 license on land subject to art. 97 required a legislative vote because the issuance amounted to a transfer of legal control from the DEP to the BRA “sufficient to effect a disposition, as well as a change in use of the land, both of which triggered the two-thirds vote requirement.”

The Supreme Judicial Court (SJC) granted direct appellate review of the case and held that the Pavilion is not subject to art. 97, but that even if art. 97 had applied, the issuance of a chapter 91 license is not a disposition that triggers an art. 97 vote requirement.

The SJC focused on whether the 1970 BRA taking was for art. 97 purposes. The court, quoting the state statute enabling takings for urban renewal, said that land taken for urban renewal purposes is “generally understood to be taken ‘for the purpose of eliminating decadent, substandard or blighted open conditions.’” While the court noted that those purposes “may accomplish goals similar to those outlined in art. 97,” the “overarching purpose” of the taking is distinguishable from art. 97 purposes. The court wrote, “The critical question to be answered is not whether the use of the land incidentally serves purposes consistent with art. 97, or whether the land displays some attributes of art. 97 land, but whether the land was taken for those purposes, or subsequent to the taking was designated for those purposes in a manner sufficient to invoke the protection of art. 97.” (Emphasis in original.)

In reaching this conclusion the court expressly disagreed with the breadth of a 1973 published Opinion of the Commonwealth’s Attorney General on the scope of art. 97, which had been a primary source of guidance on this subject. Contrary to the Attorney General’s Opinion, the court said it was looking for a “specific and particularized invocation of art. 97 purposes unique to” the taken area. Nevertheless the court also said that the wording of the taking was not necessarily dispositive but that, “Under certain circumstances not present here, the ultimate use to which the land is put may provide the best evidence of the purposes of the taking, notwithstanding the language of the original order of taking or accompanying urban renewal plan.” The court also noted that a conservation easement (“conservation restriction” in Massachusetts) granted “subsequent to a taking may also place land within the protections of art. 97.”

Despite having held that the Pavilion was not subject to art. 97, the court went on to hold that even if the land were protected by art. 97, the issuance of a chapter 91 license would not trigger the need for a legislative vote. The court clearly stated, “Although the granting of an easement over art. 97 land constitutes a disposition triggering the two-thirds vote requirement, a disposition of any lesser property interest does not.” Despite certain attributes of a chapter 91 license that bear similarity to an easement (e.g., it is not revocable at will but only for noncompliance, lasts thirty years, runs with the land, must be recorded to be valid, any revocation of the license is considered a taking that requires just compensation for improvements built, made or continued in compliance with the license, and it is declared a mortgageable interest by law) the court said the license doesn’t rise to the level of an easement, nor does its issuance of itself change the use of the affected land. In this case, the court said, it would be the BRA lease that changes the use, not the DEP license. Despite the plaintiffs’ assertion to the contrary, the court held that the license does not effect a transfer of control from the DEP to the BRA.

The decision is available as of March 19, 2013, at the Massachusetts SJC website, (search under Slip Opinions or later under Opinion Archive).

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