This month’s column should be named “Law of the Tideland” instead of “Law of the Land.” When walking through the Seaport District today, one can marvel at new construction on former parking lots, unaware that this area was once submerged under Boston Harbor. This remarkable transformation is partially due to the Massachusetts Legislature’s prompt reaction to a 2007 Supreme Judicial Court decision that jeopardized developments on landlocked former tidelands.
A brief history of tidelands regulation in the Bay State is helpful. Private development in tidal areas has been restricted for centuries under the public trust doctrine, which protects public access to the sea. The Massachusetts Bay Colony passed laws guarantying public rights to tidelands and great ponds. However, the colonists also sought to encourage private wharf construction for maritime commerce. To balance these competing interests, Massachusetts became one of a few states allowing private ownership of tidal land to the low-water mark (instead of only to the high-water mark), while ensuring public access to intertidal areas for fishing, fowling, and navigation.
During the 19th century, Massachusetts enacted hundreds of wharfing statutes authorizing filling and construction in tidal areas. This development profoundly changed Boston’s geography, as seen when comparing ancient and modern maps of Boston. Thousands of acres of formerly submerged tidelands in what are now the Back Bay, South Boston, Logan Airport, Charlestown and East Cambridge, were filled and built upon. Today these areas do not appear to be tidal at all, and are often distant from the shore.
The Exemption
To preserve public access to the shore, Massachusetts enacted General Laws Chapter 91, requiring licenses from the Department of Environmental Protection for projects on any “present or former submerged lands and tidal flats lying below the mean high water mark.” The statute also limits DEP’s authority to license nonwater-dependent uses in tidelands. Because DEP recognized that landlocked former tidelands had become uplands, it unilaterally exempted them from licensing.
In 2002, developers proposed the ambitious North Point project on landlocked former tidelands near Lechmere in East Cambridge. DEP, as expected, exempted the project from Chapter 91 licensing. However, neighbors took umbrage, and an interesting drama unfolded.
Old maps of Cambridge show a large wetland called Millers River between Cambridge and Charlestown at the site of North Point’s project. Today, only a vestige of this wetland remains, mostly in subterranean culverts. The area is a textbook example of a landlocked former tideland. North Point’s neighbors objected to DEP’s exemption, and appealed to the Supreme Judicial Court in Moot v. DEP in 2007. The neighbors argued that DEP had no authority to exempt landlocked former tidelands from licensing. The SJC agreed with the neighbors, to the horror of the real estate development and finance communities.
The SJC’s surprising decision raised doubts about real estate titles and existing developments on former tidelands throughout Massachusetts. In response, the legislature hastily amended Chapter 91 to specifically allow DEP to exempt landlocked tidelands from licensing. The undaunted neighbors resumed their fight against the project at the SJC, hopeful that unelected justices would overrule the elected legislature.
The SJC heard arguments in the second round of Moot v. DEP in 2009. This time, the real estate community entered the fray and filed briefs supporting the DEP exemption. Developers and lenders breathed a sigh of relief in 2010, when the SJC upheld the amendment to Chapter 91, thereby validating the DEP exemption that seemed logical from the beginning.
Christopher R. Vaccaro is an attorney in Stoneham. Email: cvacccaro@verizon.net
