Rezoning that would clear the way for a pair of new towers on Boston Harbor is back in limbo after the Massachusetts Supreme Judicial Court upheld a lower court ruling.
The SJC backed the Boston-based Conservation Law Foundation’s arguments challenging the process in which state and Boston officials approved Boston’s Downtown Municipal Harbor Plan, which allows taller buildings and more density on 42 acres between Seaport Boulevard and Christopher Columbus Park.
The rezoning affects two active development proposals, the Chiofaro Co.’s proposed 600-foot-tall, 900,000-square-foot Pinnacle skyscraper on East India Row, and a proposed 305-foot-tall, 275,000-square-foot hotel tower at the James Hook & Co. lobster pound on Atlantic Avenue. The current maximum zoning height is 55 feet.
In a ruling issued today, the SJC agreed with a lower court ruling that the state’s Secretary of Energy and Environmental Affairs does not have the jurisdiction to approve the Boston zoning changes.
The approval represented an “unlawful delegation” of the Department of Environmental Protection’s jurisdiction, the SJC ruled.
“As we’ve been saying for years, the state’s MHP process is fundamentally flawed,” CLF Interim Vice President of Healthy and Resilient Communities Deanna Moran said in a statement. “The developer-driven Downtown MHP would have resulted in less public access to one of the city’s greatest treasures – Boston Harbor. Today’s ruling makes it clear that it’s time to center waterfront planning on public access and community input, not developer profits.”
The dispute centers on the state’s public trust doctrine which protects access to the waterfront. The Chapter 91 state law requires that non-water dependent developments be “relatively modest in size” and not create conditions such as wind and shadow that excessively affect the ground-level environment.
Communities can grant exemptions to the regulations if they require developers to provide “substitutions” that provide public benefits. The Chiofaro Co. agreed to an $18.5 million package of community benefits including a renovation of Central Wharf, new parks on Long Wharf and new water transportation facilities.
The Hook Wharf hotel proposal is still in the early stages of local permitting.
Boston’s MHP was approved by former Secretary of Energy and Environmental Affairs Matthew Beaton in 2018. CLF and trustees of the Harbor Towers condos challenged the decision. In 2021, a Suffolk Superior Court judge ruled in favor of CLF.
“The New England Aquarium applauds the Supreme Judicial Court’s unanimous ruling that reinforces Boston’s waterfront as a special and uniquely valuable property that belongs to the public and cannot be given away. Together, we can now create a downtown waterfront for all that is accessible, inclusive, and climate resilient,” New England Aquarium CEO Vikki Spruill said in a statement.
The Chiofaro Co. did not immediately respond to a request for comment.
“We have always supported responsible redevelopment of the Harbor Garage, but the plan put forward by Prudential Real Estate and the Chiofaro Co. was clearly inappropriate and inconsistent with Chapter 91 state law protecting the public’s access to the waterfront. We look forward to working with the city, state, and our neighbors on a plan that leads to better public access to the waterfront with better resiliency,” the Harbor Towers trustees said in a statement.
In a footnote, SJC justices said this week’s ruling does not throw into question dozens of other municipal harbor plans approved since 1990 in other Massachusetts communities, citing statutory deadlines for filing an appeal.