In a ruling whose effects could ripple from Gloucester to New Bedford, a Suffolk County judge has dealt a major blow to a long-planned and much-debated skyscraper on the edge of Boston Harbor.
Superior Court Judge Brian Davis on Thursday threw out Boston zoning rules that would have allowed the 600-foot tower developer Don Chiofaro has proposed for the site of the Boston Harbor Garage. And he did it in a way that calls into question the validity of similar waterfront plans up and down the state’s coast.
In a 29-page ruling on a lawsuit filed by the Conservation Law Foundation and residents of the Harbor Towers condominium complex, Davis found that Baker administration officials overstepped their authority in 2018 when they approved Boston’s so-called downtown municipal harbor plan, a document that set rules for new development on 42 acres along the downtown waterfront.
Much of that document deals with Chiofaro’s proposed tower, a project critics — including CLF and Harbor Towers — say would put too large of a development too close to the water, an area protected under state laws dating to Colonial times. But after lengthy negotiations and agreements by Chiofaro Co. to preserve waterfront access for the public and to fund various programs, the plan won approval from then-Mayor Martin J. Walsh and, eventually, from Matt Beaton, then the state environmental secretary.
That last step, Davis wrote, was problematic.
State law, as written by the Legislature, “explicitly and unambiguously” requires such plans to be approved by the Department of Environmental Protection, Davis wrote, not the secretary for Energy and Environmental Affairs. Yet the DEP instead referred the matter to Beaton for his OK.
It’s a small but important distinction, said Peter Shelley, senior counsel for CLF, and one that speaks to a central critique of waterfront development in Massachusetts, particularly in Boston: that access to one of the state’s most cherished natural resources is being traded away piecemeal to plugged-in developers without broader planning or adequate public review.
“DEP is a regulatory agency and the secretary is not,” Shelley said. “There is certainly a lot more politics going on in the secretary’s office than there usually is in DEP. And when the secretary makes a decision, it’s fundamentally unchallengeable.”
Yet that’s how 17 harbor plans were approved in coastal communities since the 1990s. They govern everything from open space to public access to building heights which — absent a plan saying otherwise — are generally limited to 55 feet along the water. If Davis’s ruling stands, said Tamara Small, CEO of real estate trade group NAIOP Massachusetts, many development projects, large and small, would be suddenly cast into doubt.
“It creates tremendous uncertainty for every community that has adopted a municipal harbor plan, and all of the projects that are pending in those communities,” Small said. “It changes the rules of the game.”
A spokeswoman for the state office of Energy and Environmental Affairs said it is reviewing the ruling, and acknowledged its potentially broad implications.
“For 30 years, the Commonwealth and municipalities have worked cooperatively to enhance our public waterfronts using the municipal harbor planning process,” said EEA spokeswoman Katie Gronendyke. “Today’s ruling could have a significant impact on years of careful planning and development in communities across Massachusetts.”
The state could appeal the ruling, but Small said another option is to change state law to clarify who approves municipal harbor plans, as was done following a 2007 ruling by the Supreme Judicial Court on a similar case involving a site near the Charles River that was once water but later filled in.
Either of those routes, though, could take years. Chiofaro has already been working on the Harbor Garage project for more than a decade, negotiating with what is now a third mayoral administration.
In early 2020 — even with the Harbor Towers and CLF lawsuit pending — he finally filed plans for a $1.2 billion office and residential tower with the Boston Planning & Development Agency. Review has been slowed by the COVID-19 pandemic and continued concerns from neighbors, including the New England Aquarium. But the project is gradually moving forward at the BPDA, as is another project covered by the same downtown harbor plan — a 25-story hotel on the site of James Hook & Co. Lobster.
On Friday, a Chiofaro Co. statement noted the zoning process that blessed his project was the subject of lengthy community debate that involved “five years of study and over 40 public meetings.” The company pledged to continue pushing ahead with the development.
“The Court’s ruling addresses the State’s regulatory framework for waterfront projects, but is not a ruling on the merits of the Harbor Garage or any other project,” it said.
But that framework was so flawed that it should be redone, said Harbor Towers trustees. And, they added, it should be redone with consideration for how much has changed even in the three years since it was approved, citing growing worries about rising sea levels and emphasizing the importance of keeping the city’s waterfront open to everyone.
“Now is a time for a renewed focus on climate change and public enjoyment of the waterfront,” they said in a statement. “Harbor Towers welcomes the opportunity to participate in that process.”