Legislators on Beacon Hill urgently need to step in and clarify the rules for waterfront development in Massachusetts following a bombshell ruling in a dispute over a downtown Boston tower.
Residents of the Harbor Towers condominium complex and Conservation Law Foundation had sued the state over former Secretary of Energy and Environmental Affairs Matt Beaton’s approval of new waterfront zoning in Boston that cleared the way for a 600-foot-tall skyscraper from The Chiofaro Co. called “The Pinnacle.” The suit argued that Beaton had no right to OK the new zoning, which overruled longstanding state regulations over the height and density of waterfront buildings under the Chapter 91 state tidelands law, which also mandates public waterfront access.
Judge Brian Davis agreed in his April 1 decision, saying the legislature never authorized the secretary to take such a step as part of the Department of Environmental Protection’s Chapter 91-mandated approvals process.
The Harbor Towers suit may be, at its heart, NIMBY obstructionism – The Pinnacle would replace a decaying 7-story parking garage with the personality of a concrete trash can – from the denizens of one of the only downtown buildings with a technically private waterfront. But in their efforts to forestall any change, the towers’ wealthy residents have thrown into doubt the entire mechanism for turning Chapter 91’s promise of public waterfront access into quality public space.
The standard of “public access” in Boston has for years been a narrow walkway wrapped around the base of waterfront buildings, largely devoid of charms and programming that might indicate these promenades are open to anyone other than the well-heeled residents and customers of harbor buildings.
The Chiofaro tower promised something different, with a multimillion-dollar “Blueway” public plaza and a design that would invite the public to enjoy and use the waterfront as state law and tradition dating back to the Colonial era originally intended. But investments like these are only possible by increasing the value a new building creates. The kinds of trade-offs envisioned in the Boston zoning overturned by this case are necessary in the world of today’s historically high construction and land costs. Municipal officials simply do not have the market power to force investors to accept returns below the going rate in order to pay for quality public amenities.
Worse still, this court case throws into doubt the Municipal Harbor Plan legal framework that underlies the construction of dozens of waterfront buildings across the state.
Lawmakers can’t allow this issue to drift by in the hopes that any appeal by Chiofaro will restore the status quo ante. Judge Davis’ decision has noted a technical problem in state law, and it must be fixed. The legality of numerous existing waterfront buildings and future developments, from tiny Chatham to Boston Harbor, shouldn’t be left in doubt.
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