Section Review

Public Rights, Private Harms, and the Public’s Role: A Discussion of Hertz v. Secretary of Executive Office of Energy and Environmental Affairs

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


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.

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