Development plan pits North End residents vs. officials

Some are challenging the BRA’s efforts to bring a restaurant to the end of Long Wharf.JONATHAN WIGGS/GLOBE STAFF

The state’s highest court has agreed to decide whether a waterfront perch at the tip of Boston’s Long Wharf can be run by a private business without legislative approval, a decision that could have implications for urban renewal efforts across Massachusetts.

The Supreme Judicial Court will hear arguments Nov. 5 on Boston officials’ desire to expand and enclose a large, open-sided pavilion on the plaza at the end of Long Wharf and put a restaurant and tavern inside and add outdoor seating. Although the area is used by tourists and residents alike, city officials contend it is not a park, but private redevelopment land that can be used to further the city’s urban renewal goals — without lawmakers’ approval.

But a passionate group of current and former North End residents has challenged the Boston Redevelopment Authority in court, arguing that the area is public open space that by law needs two-thirds of the state Legislature to approve any changes in its use. A Suffolk County Superior Court judge sided with residents in June 2011 and said the BRA needed a two-thirds vote.

Now, the BRA has appealed that decision directly to the SJC, setting the stage for the two sides to present their arguments.

“This is a public park,’’ said Anne M. Pistorio, one of the residents fighting the BRA and who several times a week walks the area, near the ferry terminals, for whale watching and harbor tours. Out on Long Wharf one recent sunny day, Pistorio pointed to scores of people milling around the plaza and under the pavilion.

A Paul Revere engraving shows Long Wharf in 1768.GLOBE FILE

“It is the only wharf that is still all open,” Pistorio said. “Look at the view — it’s breathtaking.”

The crux of the city’s argument rests in the 1970 eminent domain taking of Long Wharf by the BRA as part of Boston’s Urban Renewal Plan to, in part, “stimulate and to facilitate development efforts in the area” and to “revitalize a key portion of downtown Boston,” according to the plan. Long Wharf, considered the nation’s oldest continuously operated wharf, had fallen into disrepair by the 1960s, with many of its shipping-related warehouses shut.

Now it is one of the city’s most popular destinations. The Boston Marriott Long Wharf hotel sits close to the street, and both the adjacent ferry terminals and nearby Aquarium help attract heavy foot traffic. The popular Harbor Walk runs along the perimeter of the wharf.

Although a bronze plaque nearby proclaims the area at the end of the wharf “Long Wharf Park,” the BRA says the pavilion is not part of that protected area. “This spot was taken for urban renewal and was not taken for open space,’’ said James Tierney, BRA chief of staff and an attorney. The BRA says the large pavilion is underutilized and a restaurant will improve the area. The authority expressed confidence that it would be able to find a suitable client for the location.

The case could have reverberations elsewhere. If changes on land taken for urban renewal — even if that land is originally put aside as open space or park land — must be approved by two thirds of the Legislature, it could thwart the mission of redevelopment agencies statewide, the BRA says.

The constitutional amendment residents are relying on was passed in 1972 to ensure there would be a high level of public support if park land was taken to build schools, hospitals, or private business upon, said Matthew Kiefer, a land-use attorney with Goulston & Storrs in Boston. He said requiring a two-thirds vote to change the use of any urban renewal land would hinder development efforts. It would “significantly impede them,’’ Kiefer said in an e-mail. “It would only be justified to prevent a serious abuse to the public interest. It’s hard to make the case that leasing space to a restaurant on a pier presents such a risk.”

The Long Wharf saga began when the BRA suggested putting a restaurant and tavern at the site around 2006. By 2007, a restaurant called Doc’s had received most necessary permits and a liquor license. A state permit to use the waterfront space came in 2008.

But Superior Court Judge Elizabeth M. Fahey dismissed the state permit in 2011, saying the city’s urban renewal plan included provisions for park land and open space, so any change in use for open space would need legislative approval. Now with the case moving to the SJC, residents, who call themselves the North End Ten, are trying to raise money to help with the $35,000 in anticipated legal fees. They have already raised $25,000. “We think this is so important not just for us but for the public,’’ said Sanjoy Mahajan, one of the opponents.

Opponents acknowledge they don’t want any bar on the site and say a two-thirds vote by the Legislature is vital so there is a public discussion about it.

“My issue is privatization,’’ Mahajan said. “The public has already paid millions of dollars to make this a beautiful spot — why should they pay again to use it?”