Back in September and February, we wrote about MassDEP’s Proposed Interpretation of Chapter 91 regulations, which attempted to provide guidance to the regulated community on the conditions under which a historic pile field can contribute to the “project shoreline” — the outer boundary of a development proposal. Triggered by proposed redevelopment of Lewis Wharf, the proposed interpretation essentially stated that if the piles comprising a pile field were no longer visible at “Extreme High Water”,… More
Tag Archives: Chapter 91
Six Years in the Making, New Ch. 91 Flexibility Washes Ashore
Last month, MassDEP and the Massachusetts Office of Coastal Zone Management released long-awaited revisions to the regulations governing waterfront development in Massachusetts (the Chapter 91 regulations, the Designated Port Area regulations, and the Municipal Harbor Plan regulations). The changes have been in the works since 2010, when MassDEP and CZM first convened working groups to review whether the regulations could be revised to provide greater flexibility to accommodate a variety of uses along the waterfront. … More
CLF Takes Its MHP Fight Across the Fort Point Channel
Last week we wrote about the Conservation Law Foundation filing suit against EOEEA Secretary Beaton and DEP Commissioner Suuberg for actions associated with the approval of an amendment to the South Boston Waterfront District Municipal Harbor Plan. In that suit, CLF alleged that the Secretary’s decision approving the plan was arbitrary and capricious.
This week, CLF is in the news again for sending a letter to Secretary Beaton requesting that he delay the state’s approval process for another Municipal Harbor Plan located just across the Fort Point Channel.… More
CLF Questions Secretary’s Chapter 91 Discretion
Last week the Conservation Law Foundation (CLF) announced it has filed suit against EOEEA Secretary Beaton and DEP Commissioner Suuberg for actions associated with the approval of an amendment to the South Boston Waterfront District Municipal Harbor Plan. In the Commonwealth, coastal communities can create Municipal Harbor Plans (MHPs) to guide planning and development along the shoreline. If approved by the Secretary, MHPs can create substitute provisions that modify the Commonwealth’s underlying Chapter 91 standards governing public and private use of land and water along the coastline.… More
The Latest on the DEP’s “Pile Policy”: If the Tides Rise, Do Structures Still “Exist”?
Back in September, we wrote about MassDEP’s Proposed Interpretation of Chapter 91 regulations, which attempted to provide guidance to the regulated community on the conditions under which a historic pile field can contribute to the “project shoreline” — the outer boundary of a development proposal. The issue that the policy seeks to address arose as the DEP reviewed an application for a Chapter 91 license for Lewis Wharf in Boston. … More
MassDEP: The Rising Tide May Steal Your Development Rights
Does a pile field exist if it’s covered at high tide?
MassDEP seems to think not.
Through the Commonwealth’s Chapter 91 program, MassDEP regulates what can be built over tidelands. In last week’s Environmental Monitor, MassDEP announced a “Proposed Interpretation” that would prescribe the way a proponent seeking a Chapter 91 license to authorize development should define a “Project Shoreline”… More
MassDEP and CZM Propose Changes to Chapter 91 Regulations
MassDEP and the Commonwealth’s office of Coastal Zone Management recently proposed draft changes to the Designated Port Area and Facility of Public Accommodation regulations under the Chapter 91 program. The draft for public comment, including a summary of the changes and redlines of the regulations, can be found here. Information on submitting public comments can be found here. Comments are due by Monday,… More
When is a Park not a Park? The SJC Declines to Give Broad Interpretation to Article 97
Earlier this month, the Supreme Judicial Court (SJC) issued its decision in Mahajan v. DEP, holding that the Boston Redevelopment Authority’s (BRA) proposed redevelopment of Long Wharf in Boston is not subject to Article 97 of the Amendments to the Massachusetts Constitution. Among other things, Article 97 protects park lands from being disposed of or used for other purposes, absent a supermajority vote from both branches of the Legislature.… More
The Wheels of Regulatory Reform May Grind Slowly, But In Massachusetts, At Least They Are Grinding
In April 2011, MassDEP launched a regulatory reform initiative. Yours truly participated in the original stakeholder group working with MassDEP to develop a list of potential reforms. Last week, MassDEP provided an update on the status of the reform package. While it has probably taken longer than Commissioner Kimmell had hoped, I am pleased to say that there is a lot of good stuff at this point, including some items that have been added since the original Action Plan was finalized in March 2012.… More
The SJC Really Means It: Only the Legislature Can Give Up the Public’s Ownership Interest in Tidelands
As many of you know, the Commonwealth’s tidelands licensing statute, Chapter 91, is one of my favorites, for no other reason than that it gives me the opportunity to talk about where the “waters ebbeth and floweth.” Deriving from the Colonial Ordinances of 1641 and 1647, Chapter 91 is about as arcane as it gets – which, of course, lawyers are supposed to like.
The short version is that the Commonwealth holds the fee interest in “Commonwealth Tidelands” – those below the low water line. … More
The Arguments Are All Moot Now: The SJC Upholds the Legislature’s Chapter 91 Amendments
I’ve been waiting to write this headline ever since the SJC took this case. Today, the SJC issued its long-awaited decision in Moot v. Department of Environmental Protection. For those of you who pay attention to where the waters ebbeth and floweth – or at least where they ebbed and flowed in 1641 – you know that this is the second time that Moot has been before the SJC.… More