If You Build a Facility of Public Accommodation, but There’s No Public to Accommodate,What Do You Have? Empty Space

Chapter 91 is in many ways my favorite Massachusetts environmental statute. After all, very few statutory regimes allow one to discuss the Colonial Ordinances of 1641-47, and where the waters ebbeth and floweth. The gist is that these waters, and the land under them, belong to the Commonwealth, in trust for its citizens. Of course, the modern details get more complicated, but that’s still the essence.

As Boston Harbor in particular has gotten cleaned up, and efforts to revive the waterfront have really picked up steam (thank you, Liberty Wharf!), an issue that has reared its ugly head is the requirement for projects subject to Chapter 91 to provide “Facilities of Public Accommodation.” This requirement is understandable at a certain level and can be a useful tool to ensure the ongoing revival of the waterfront as public space. However, what happens when a developer is required to devote the first floor of a project to an FPA, but there’s no public to accommodate? There are some waterfront locations where FPAs don’t really make sense. Indeed, the proof is often in the pudding; developers sometimes just cannot find tenants for FPA space.

That problem was the subject of the recent adjudicatory hearing decision in In re Matter of Navy Yard Four Associates, Ltd. The underlying facts and legal issues are somewhat complex and not really relevant here. What is relevant is that the licensee, known as “Navy Yard,” has a Chapter 91 license that, consistent with the regulations, requires that the first floor of the project be devoted to an FPA. Navy Yard sought to amend the license to get out from under the FPA requirement. The Recommended Final Decision came down against Navy Yard.

Commissioner Kimmell adopted the Recommended Final Decision, but, in what is most interesting in the Decision – and the reason for this post – he did not stop there. As the Commissioner noted:

It is apparent that the legal wrangling in this case stems from the Navy Yard Four’s alleged difficulty in securing a tenant for a ground floor FPA.

The paramount purpose of chapter 91 is to activate, preserve and protect public use and enjoyment of tidelands. While the FPA requirements have been highly successful in fulfilling this purpose and enriching our civic culture, it may be that in some instances FPA rules do not work as intended and interior spaces remain vacant. In my view, idle and vacant waterfront space does not promote the public use and enjoyment of tidelands, and represents a lost opportunit for the public.

It is therefore incumbent upon the Department … to determine whether this problem exists, is widespread, and is attributable to FPA rules. If so, the Department should explore refinements to FPAs and consider alternative means of promoting the public use and enjoyment of the waterfront to address instances in which existing FPA rules do not secure these benefits.

To which, I can only add, it’s about time. Empty FPA space indeed benefits no one.

I do not know what, if anything MassDEP will do with respect to FPAs. There are those who think that a legislative solution is necessary. I suspect that DEP disagrees. Either way, the Commissioner’s recognition of the issue and public statement about it in the Navy Yard Four decision is a positive first step.

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