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Residents of the Harbor Towers condos on East India Row are challenging The Chiofaro Co.’s plans for a 600-foot skyscraper on the neighboring Harbor Garage property.
“Not in my backyard” could be the state motto in Massachusetts, where major real estate developments routinely endure costly legal challenges. The Chiofaro Co.’s proposed 600-foot mixed-use tower at the Harbor Garage site near the New England Aquarium in Boston is an example.
Chiofaro has not secured permits for the project. No shovels have hit the ground. However, the Boston Planning & Development Agency, the Massachusetts Executive Office of Energy and Environmental Affairs (EOEEA) and the Department of Environmental Protection (DEP) are working with Chiofaro to increase the building height at the Harbor Garage site. The Boston-based Conservation Law Foundation (CLF) and residents at the nearby 400-foot-tall Harbor Towers oppose the increased building height. Many of the Harbor Towers residents park their cars at the Harbor Garage under leases scheduled to expire in 2022.
The Harbor Garage redevelopment depends on the Downtown Waterfront District Municipal Harbor Plan, or Downtown MHP, adopted by the BPDA in 2017 and approved by EOEEA and DEP in 2018.
The Downtown MHP covers a 42-acre waterfront area bordered by the North End, the Fort Point Channel and the Rose Kennedy Greenway. The relevant area consists of filled tidelands subject to Chapter 91 of the Massachusetts General Laws. That statute requires DEP to ensure that tidelands accommodate water-dependent uses and other public purposes. DEP’s regulations impose a basic height limit for the garage site, ranging from 55 to 155 feet, but allow taller buildings if Boston adopts a “municipal harbor plan” approved by EOEEA on DEP’s recommendation. The Downtown MHP opens the possibility of a 600-foot tall building at the garage site.
A Pair of Legal Challenges
After EOEEA approved the Downtown MHP, CLF and Harbor Towers residents filed suits in Suffolk Superior Court.
CLF’s suit listed six counts against EOEEA and DEP. CLF’s first count sought a declaratory judgment that DEP had wrongfully delegated its Chapter 91 authority to approve municipal harbor plans to EOEEA. CLF’s second and third counts sought declaratory judgments challenging other aspects of the Downtown MHP’s regulatory framework. Its fourth count claimed that the Downtown MHP will damage the environment. CLF’s last two counts asked the court to nullify DEP’s and EOEEA’s approvals under the Massachusetts mandamus statute.
DEP’s regulations impose a basic height limit for the garage site, ranging from 55 to 155 feet, but allow taller buildings if Boston adopts a “municipal harbor plan” approved by EOEEA on DEP’s recommendation.
Harbor Towers residents, whose twin 400-foot towers are even closer to the waterfront than the garage site, sued EOEEA, DEP and Chiofaro for similar reasons, arguing that Chiofaro’s project will cause congestion, adverse wind impacts and, of course, obstructed views. They also sued to retain parking rights at the garage site after their leases expire in 2022.
Chiofaro, EOEEA and DEP moved to dismiss all counts against them in both lawsuits. In order to survive this motion to dismiss, CLF and the Harbor Towers residents only needed to show that their allegations against the defendants were plausible. When considering motions to dismiss, courts assume, for purposes of the motion, that the factual allegations in the plaintiffs’ complaint are true. Using this analysis, last month the Superior Court dismissed CLF’s and the Harbor Towers residents’ mandamus claims, most of their declaratory judgment claims and the Harbor Towers residents’ claims to extend their parking rights beyond 2022.
Two Counts Still in Play
Two of the plaintiffs’ counts survived the motions to dismiss.
One of these was the claim that the Downtown MHP causes damage to the environment. The defendants had argued that the Downtown MHP does not approve any specific development and, therefore, EOEEA’s approval does not damage the environment.
Christopher R. Vaccaro
The court disagreed, and ruled that the plaintiffs’ claim is plausible because the Downtown MHP approval might damage the environment if it violates Chapter 91’s requirement that tidelands projects provide public benefits. The court also preserved CLF’s claim that DEP misused its regulatory authority under Chapter 91 when it delegated approval rights for the Downtown MHP to the EOEEA.
The survival of these two counts allows the plaintiffs to continue hindering Chiofaro’s project. Other legal challenges are expected when Chiofaro submits permit applications.
A 600-foot tower will certainly impact Boston’s waterfront, but the plaintiffs’ opposition to the project is rife with irony.
Boston-based CLF has picked a fight against an urban development, in a world facing dire threats to its climate and the environment. Harbor Towers residents are challenging a project that will have no greater impact than the twin 400-foot towers where they now reside. Reading between the lines of their complaints, a familiar theme rings out loud and clear – “Not in my backyard.”
Christopher R. Vaccaro, Esq. is a partner at Dalton & Finegold, L.L.P. in Andover. His email address is cvaccaro@dfllp.com.
