Although the Municipal Harbor
Planning Program of the Massachusetts Office of Coastal Zone
Management has received relatively little scrutiny from litigators
since its inception, it has recently drawn the attention of
abutters seeking to use the program as a new route to challenge
waterfront projects that affect the use of their privately-owned
property. The first appellate decision interpreting the municipal
harbor plan regulations, however, has not only stymied this
approach, but has also resulted in an opinion that provides a
glimpse into the current Appeals Court's view of how a statute or
regulation may dictate the public's role in governmental
decision-making. As a result, the Appeals Court's opinion in
The Appeals Court's reasoning in
The litigation in
The 2006 amendment at issue in
The plaintiffs appeared at public
hearings and submitted written comments opposing Boston's proposed
plan during the amendment process. However EEA ultimately concluded
that the mitigation proposed in the plan would provide a net
benefit to the public's use of a dilapidated and underused section
of the waterfront. The plaintiffs submitted a request for
reconsideration of the decision, but that was denied as well. The
plaintiffs then filed their case against EEA in Superior Court for
substantive review of the municipal harbor plan amendment.
The Superior Court resolved the case
on EEA's motion to dismiss. The court concluded that the harms the
plaintiffs alleged in their complaint - in particular that the plan
would allow a building that would block the air, light, and view
from their condominiums - were not within the area of concern of
the harbor plan. The problem with these harms, the court
determined, was that the plaintiffs' complaints only consisted of
harms from private property, and the municipal harbor plan
regulations only concern themselves with harm to public use of
public places. Thus, there was no standing for their claims.
Subsequent to filing their complaint, the plaintiffs had also
submitted affidavits describing access, noise, and air pollution
problems that would affect their use of their condominiums, but the
court's opinion did not address these issues specifically.
Presumably, the court rejected these allegations on the same
basis.
On appeal, the Appeals Court
generally confirmed the Superior Court's analysis and conclusion,
but couched it in different terms. The Appeals Court agreed that
all of the various harms alleged by the plaintiffs were merely
harms to the use of their private condominiums, and not to the
public's use of public spaces. This distinction drew upon the
Appeals Court's reasoning in
Duty is an often overlooked
component in the relatively complicated intersection of standing
and administrative law. The Supreme Judicial Court stated in
The
This much of the court's opinion was
fairly consistent with the Superior Court's ruling, albeit stated
in different terms, and might have been sufficient to resolve the
plaintiffs' claims. However, the Appeals Court chose to go on to
discuss the nature of the regulatory scheme and the public's role
in it. Specifically, the Appeals Court observed that the municipal
harbor plan regulations set forth a detailed regulatory scheme that
provides only for public hearings, comments, and reconsideration,
and not for any broader right of judicial review. The court stated
that this type of advisory role was consistent with the public's
role under the Massachusetts Environmental Protection Act 301 CMR
11.00 ("MEPA"), which the Supreme Judicial Court had discussed
in
Taking this analysis as a whole, the
Appeals Court appears to be more than willing to employ the duty
portion of the standing analysis, and largely as a result, views
the municipal harbor plan program and MEPA similarly with regard to
standing. While that clearly means that abutters alleging private
harms will not have standing under either scheme, perhaps the more
interesting point is that the Appeals Court went to the trouble of
including an analysis of the public's role in the scheme. The
court's conclusion that MEPA and the municipal harbor regulations
treat the public's involvement similarly, likely means that the
court intends to interpret standing under both programs in the same
limited fashion regardless of the identity of the plaintiff.
Consequently, in most cases, there probably will not be judicial
review of the merits of municipal harbor plan decisions using
causes of action such as declaratory judgment, certiorari, or
chapter 30A administrative review.
This conclusion should be of
significance not only to parties interested in waterfront
development, but also to any practitioner regularly dealing with
standing under administrative schemes, because it adds one more
concrete example to a relatively small world of cases where
Massachusetts courts have determined that the public's
participation in the administrative process does not necessarily
require a right to judicial review on the merits. It also adds
further support to the conclusion that the legislature and public
agencies may create rules that require an official to make open,
informed decisions by consulting the public, without concern that
such a consultation requirement will create a multiplicity of
litigation that ultimately stagnates the effectiveness of the
regulatory program.
Thus, on its face, the most specific
point to take away from the
Hertz v. Secretary of Executive Office of Energy and
Environmental Affairs, may ultimately be of more interest to
practitioners beyond the context of waterfront development than
within it. Hertz flowed from, and thus requires a brief
explanation of, the nature of the municipal harbor plan scheme.
Pursuant to the municipal harbor plan regulations at 301 CMR 23.00,
a municipality may propose a municipal harbor plan, or an amendment
to an existing plan, in order to make limited alterations to the
baseline Mass. Gen. Laws ch. 91 ("chapter 91") standards that
govern a particular waterfront area. The scheme gives
municipalities a say in the permitting of their waterfronts and
allows state regulators to take account of local community
objectives and priorities as well as harbor-specific conditions.
Logistically, the process entails the filing of an application with
the Secretary of the Executive Office of Energy and Environmental
Affairs ("EEA") that includes the requested alterations to chapter
91 standards, the municipality's objectives, and suggested offsets
to the impacts to the proposed alternate standards. The overall
plan must promote the Commonwealth's interests in tidelands with
equal or better effectiveness than the baseline regulatory
standards. Ultimately, EEA has discretion to approve, deny, or
modify a requested plan or amendment, however EEA does so only
after receiving input through public hearings and written comment.
The final plan amounts to an overlay on all or part of a harbor in
which the alternate standards are applied during the chapter 91
licensing process if a project meets the offsetting requirements
set forth in the plan.
Hertz grew out of a dispute between the
residents of an upscale condominium development and the City of
Boston over the city's redevelopment plan for the neighboring
"Lovejoy Wharf" building and wharf complex. Lovejoy Wharf should be
familiar to many by sight, if not by name, as the derelict building
and wharf that perches on Boston Harbor adjacent to the Boston
Garden and the Land Court. The plaintiffs' condominiums sit just
landward of Lovejoy Wharf, on the floors above the Land Court.
Conflict began during the public participation segment of the
city's request to amend the Boston Harbor Municipal Harbor Plan in
2006. The requested amendment allowed certain changes to be made to
the Lovejoy Wharf building that would not normally have been
permitted under chapter 91 licensing. The change the
plaintiffs were most concerned about was an increase in height that
would allow the shorter Lovejoy Wharf building to be built to a
height even with the plaintiffs' building, and as a result, to
block the view from their condominiums.Hertz was intended to
facilitate revitalization of the section of the harborfront next to
the garden and the Zakim Bridge. This area included the Lovejoy
Wharf building and wharf, the plaintiffs' building, and a portion
of the water. The city decided to deal with this section in two
phases. First it submitted an amendment in 1999 for the area that
focused on the plaintiffs' building, which allowed the plaintiffs'
building to be built to its current height. Second, the city
proposed the 2006 amendment to deal with the Lovejoy Wharf building
and wharf. The amendment requested an increase in height even with
the plaintiffs' building, but proposed as mitigation, the
construction of public amenities including a waterfront viewing
area and visitor center, a harborwalk with landscaped areas and
connections to improve pedestrian access, and a boat dock that
would encourage use of the largely abandoned wharf.
Higgins v.
Department of Environmental Protection, 64 Mass. App. Ct. 754
(2005). There, the court had concluded that neighbors to a chapter
91 project had no standing under that regulatory scheme for harms
to their view and access to their private office building, because
chapter 91 was concerned with the public's views from public
places, not private ones. If the chapter 91 program was not
concerned with views from private property in Higgins, it made
simple sense that the municipal harbor plan regulations, a public
planning scheme with similar interests that overlays the chapter 91
program, was also unconcerned with views from private property in
Hertz. However, perhaps in response to the plaintiffs'
complaints that the Superior Court did not pay enough attention to
their affidavits, the Appeals Court did not spend much time
discussing standing in terms of whether a particular type of harm
fell within the area of concern of the regulations. Instead, the
court focused on who the plaintiffs were and what EEA's duty was to
them. Enos v. Secretary of Environmental Affairs, 432 Mass.
132 (2000) that, in addition to the other considerations involved
in determining standing, such as the area of concern of a statute
and the availability of other remedies, "standing usually is not
present unless the governmental official or agency can be found to
owe a duty directly to the plaintiffs."
Id. at 136.
Massachusetts courts, however, have not consistently stressed this
duty component of standing. This might be explained by the fact
that one can understand the duty component as an alternative method
with which to examine the area of concern of a statute when the
government is a party to the case. If a statute does not create any
duty for an official to perform for a particular person, then it is
unlikely that the person can state any harm to them caused by the
official that is within the scope of the statute. Hertz court
set up its standing analysis in terms of duty. The court noted
that, contrary to the plaintiffs' claims, the regulations do not
grant them any special presumption of standing as abutters, nor
does it make them "aggrieved persons." Moreover, the regulations
have no provisions for judicial review whatsoever. Based upon these
facts, the court concluded that the regulations created no right in
these plaintiffs to redress the private injuries they set forth.
Essentially, in the terms of the duty analysis, the court concluded
that the regulations did not create any duty that EEA owed to
abutting private condominium owners concerning their private space.
EEA has a general duty to involve the public through notice and
comment, but not to grant any special consideration to an abutter's
view, particularly when it creates a detriment to the public at
large. On this basis, the plaintiffs, in their capacity as abutting
condominium owners, did not state any harm within the concern of
the regulations. This makes sense because the regulations set the
interests of the public at large as the priority, over and above
any particular person's private interest. Given these priorities,
it would have been strange for the court to conclude that that a
group of abutting neighbors could use such a regulatory scheme to
prevent the creation of a project that would benefit the public at
large because of a potential cost to the neighbors' view.
Enos.
Comparing Enos, the
Hertz court noted that a detailed
review of MEPA revealed no legislative intent that persons like the
plaintiffs should be able to seek judicial review of the merits of
EEA's determination. Based upon this analysis, the court detected
no intent to allow the plaintiffs judicial review in Hertz.
Bolstering this conclusion, the court also observed that a right to
judicial review for these types of private harms would subject
almost all municipal harbor projects to litigation and cause a
great deal of delay in a program that was seemingly designed to
limit the role of public participation. At the same time, the court
took note of the fact that the plaintiffs' had other opportunities
for judicial review without the creation of a new cause of action,
through the underlying chapter 91 process.
Hertz opinion is
that the municipal harbor plan regulations will not serve as a new
path to challenge waterfront development. Plaintiffs seeking review
of that type will have to resort to the more well-traveled paths of
chapter 91, the Wetlands Protection Act, and municipal zoning
appeals. However, for those interested in the complex and
sometimes-shifting standing case law of the commonwealth, the
Hertz case also provides insight into appellate courts'
understanding of the duty prong of standing analysis while giving
practitioners another example of a type of regulatory scheme that
allows public consultation without creating a new cause of action.