Pinnacle at Central Wharf (Harbor Garage) | 70 East India Row | Waterfront | Downtown

stellarfun

Senior Member
Joined
Dec 28, 2006
Messages
5,102
Reaction score
369
Tension member, assuming you are not trolling, but understand that the Harbor Towers buildings were built consistent with applicable law at the time (early 1970s).

This decision, link below, by the SJC in 1979, upset the applecart so to speak on development of the Boston harbor waterfront.

^^^ This is a seminal case in Massachusetts real property law. Excerpting from the decision,

The essential import of this holding [by the SJC] is that the land in question [Lewis Wharf] is not, like ordinary private land held in fee simple absolute, subject to development at the sole whim of the owner, but it is impressed with a public trust, which gives the public's representatives an interest and responsibility in its development. This concept is difficult to describe in language in complete harmony with the language of the law ordinarily applied to privately owned property. We are not dealing with the allocation of property rights between private individuals when we are concerned with a public resource such as Boston Harbor.

We believe that the formulation adopted by the Appeals Court, appropriately expresses the intention underlying the grant made by the Lewis Wharf statutes, and we endorse it. We therefore hold that the BWDC has title to its property in fee simple, but subject to the condition subsequent that it be used for the public purpose for which it was granted.
From that decision evolved the development of municipal harbor plans, a primary purpose of which is to open up development of the waterfront beyond the public purpose for which use of the land was granted back in the founding days of the Massachusetts Bay Colony.
--------------
With respect to North Point, a case which I have mentioned before, the SJC ruled that the DEP could not give a pass to development on tidelands simply because it did not have the resources to review an application for a license to develop such tidelands.

The legislature then passed a law declaring that a license was not necessary to develop the North Point tidelands.

The plaintiff in the first lawsuit was a gentleman named John Moot. He 'won' in the original case. When the legislature nullified his legal victory, he sued again, saying that the legislature exceeded its authority.

^^^ This ruling by the Supreme Judicial Court declared that the legislature did not exceed its authority, and the result is North Point as we have it today.
 

Patrick Winn

New member
Joined
Aug 19, 2020
Messages
69
Reaction score
128
Tension member, assuming you are not trolling, but understand that the Harbor Towers buildings were built consistent with applicable law at the time (early 1970s).

This decision, link below, by the SJC in 1979, upset the applecart so to speak on development of the Boston harbor waterfront.

^^^ This is a seminal case in Massachusetts real property law. Excerpting from the decision,



From that decision evolved the development of municipal harbor plans, a primary purpose of which is to open up development of the waterfront beyond the public purpose for which use of the land was granted back in the founding days of the Massachusetts Bay Colony.
--------------
With respect to North Point, a case which I have mentioned before, the SJC ruled that the DEP could not give a pass to development on tidelands simply because it did not have the resources to review an application for a license to develop such tidelands.

The legislature then passed a law declaring that a license was not necessary to develop the North Point tidelands.

The plaintiff in the first lawsuit was a gentleman named John Moot. He 'won' in the original case. When the legislature nullified his legal victory, he sued again, saying that the legislature exceeded its authority.

^^^ This ruling by the Supreme Judicial Court declared that the legislature did not exceed its authority, and the result is North Point as we have it today.
Tension member, assuming you are not trolling, but understand that the Harbor Towers buildings were built consistent with applicable law at the time (early 1970s).

This decision, link below, by the SJC in 1979, upset the applecart so to speak on development of the Boston harbor waterfront.

^^^ This is a seminal case in Massachusetts real property law. Excerpting from the decision,



From that decision evolved the development of municipal harbor plans, a primary purpose of which is to open up development of the waterfront beyond the public purpose for which use of the land was granted back in the founding days of the Massachusetts Bay Colony.
--------------
With respect to North Point, a case which I have mentioned before, the SJC ruled that the DEP could not give a pass to development on tidelands simply because it did not have the resources to review an application for a license to develop such tidelands.

The legislature then passed a law declaring that a license was not necessary to develop the North Point tidelands.

The plaintiff in the first lawsuit was a gentleman named John Moot. He 'won' in the original case. When the legislature nullified his legal victory, he sued again, saying that the legislature exceeded its authority.

^^^ This ruling by the Supreme Judicial Court declared that the legislature did not exceed its authority, and the result is North Point as we have it today.
I have to admit that I agree with the judge's findings in this recent CLF decision. It was a very discrete issue: whether the DEP had authority to delegate approval of harbor plans to a Secretary. The law is pretty explicit that such plans have to be approved by DEP and that they can't abdicate their role. The DEP's regulatory code made approval of harbor plans by a Secretary binding. That was the sole problem--"ultra vires" decision-making. I'm not sure of the practical implications, but the holding in this case is very limited in scope. It doesn't make any finding that the harbor plan isn't in the public interest. It just says DEP needs to approve harbor plans.
 

JeffDowntown

Senior Member
Joined
May 28, 2007
Messages
3,412
Reaction score
703
I really don't understand the logic here.

DEP has to approve the plans. DEP made a regulatory ruling that says their approval process for plans is to defer to the Secretary. Secretary approves plan. Hence, per the regulation approved by DEP, DEP has approved the plan.
 

Patrick Winn

New member
Joined
Aug 19, 2020
Messages
69
Reaction score
128
From what I can remember, the Waterways Act expressly grants authority to DEP to approve harbor plans. Because it's a public trust, the DEP can't reassign that authority. The state legislature created a process where DEP has the final say on harbor plans, and the Secretary is assigned an advisory role. So regs giving the secretary final say undid the waterways act. DEP has broad authority to issue regs but not ones that contravene legislation in the context of public trusts. I think that's it in a nutshell. Interested to hear what others think.
 

shmessy

Senior Member
Joined
Apr 4, 2010
Messages
2,102
Reaction score
992
I really don't understand the logic here.

DEP has to approve the plans. DEP made a regulatory ruling that says their approval process for plans is to defer to the Secretary. Secretary approves plan. Hence, per the regulation approved by DEP, DEP has approved the plan.
So it all comes down to that Judge put on the Belichick hoodie and told the DEP to “Do its Job”.

It’s time for the DEP to stop acting like an MBTA lifer and get off its ass.
 

JeffDowntown

Senior Member
Joined
May 28, 2007
Messages
3,412
Reaction score
703
So it all comes down to that Judge put on the Belichick hoodie and told the DEP to “Do its Job”.

It’s time for the DEP to stop acting like an MBTA lifer and get off its ass.
OK, Nice rant.

But who exactly at DEP has to do "something"? DEP made a reg. that said who did something. Judge didn't like that.

Does DEP need to set up a dunking pool to eval projects in a tried and true Massachusetts manner?

Does the DEP commissioner need to sign off? (Did the legislation say that?)

Does the DEP need to hold an office poll on the topic?

What exactly does DEP approval mean?
 

shmessy

Senior Member
Joined
Apr 4, 2010
Messages
2,102
Reaction score
992
OK, Nice rant.

But who exactly at DEP has to do "something"? DEP made a reg. that said who did something. Judge didn't like that.

Does DEP need to set up a dunking pool to eval projects in a tried and true Massachusetts manner?

Does the DEP commissioner need to sign off? (Did the legislation say that?)

Does the DEP need to hold an office poll on the topic?

What exactly does DEP approval mean?

Ask the Judge. Evidently, he knows, and so do the other experts who WANT Chiofaro's project to happen, but glumly admit "Yeah the DEP screwed up by passing the buck on the decision making process to the wrong party".

I have yet to read a negative critique on what the Judge ruled - - even from the PROPONENTS of the project. It can't be any more obvious.

Until this is appealed or kicked to the Legislature, then it is a DEP screw up. Until that happens, and unless we see otherwise, they screwed up.

Another Belcihickism: "It is what it is".
 
  • Like
Reactions: W-4

stellarfun

Senior Member
Joined
Dec 28, 2006
Messages
5,102
Reaction score
369
In October 2019, this same judge in this case signaled what the issue was with respect to DEP delegating its review and approval of a Chapter 91 license to the Secretary.

https://www.clf.org/wp-content/uplo...ion-on-Harbor-Towers-Beaton-Mot-Dismiss-2.pdf

The State Defendants further maintain that Count I [of the CLF complaint] lacks merit because the regulations at issue were duly promulgated and the Secretary, in approving an MHP, does not exercise any authority that is exclusive to the Department. However, it is a plausible reading of 310 Code Mass. Regs. $ 9.34(2Xb) that the Department is bound in licensing proceedings by the substitute standards set by the Secretary in an approved MHP. See 310 Code Mass. Regs. $ 9.34(2Xb) ("If the project conforms to the [approved] municipal harbor plan the Department [DEP] shall ... apply the use limitations or numerical standards specified in the municipal harbor plan as a substitute for the respective limitations or standards contained" in the Department's standard regulations) (emphasis added). It also is at least plausible that, by virtue of 310 Code Mass. Regs. $ 9.34(2Xb), the Department has unlawfully relinquished its obligations under Chapter 91 to the Secretary. Cf. Moot,448 Mass. at352 ("by exempting [certain] tidelands from the licensing requirements of G.L. c. 91, $ 18, entirely, the department has relinquished its obligation to ensure that all nonwater-dependent uses of filled tidelands serve a 'proper public purpose,' as the Legislature has mandated. The exemption exceeds the department's authority and is invalid.")
John Moot lives still.

For those who wish to draw and quarter the residents of Harbor Towers because of their NIMBY opposition to this project, take solace that the judge in this Oct 2019 decision ruled that the easement that provided the HT residents with about 450 parking spaces in the garage expires in February, 2022. And they have no recourse. Prudential could tear down the garage, and they are shit out of luck.
___________________
Edited to add that the judge in this 2019 decision basically outlined a roadmap that the state could follow in extricating itself from the fix it was in. (Instead, the state close to continue to litigate the matter.)

First, revise the Municipal Harbor Plan regulations to make it clear that the Secretary's determinations with respect to a Municipal Harbor Plan are advisory only, and that approval of a Chapter 91 license remained exclusively with the DEP. Second, revise the Waterways regulations to affirm that only the DEP can issue a Chapter 91 license, and add a provision that when a license application is made under an approved Municipal Harbor Plan, the DEP is bound by the determinations made by the Secretary when he/she approved that plan. Third, after having done 1 and 2, return to the court and ask the court to moot CLF's claim that the Secretary had exceeded his authority, because these revisions to the regulations remedied that.
 
Last edited:

Cortes

Active Member
Joined
Jul 23, 2013
Messages
258
Reaction score
119
I wonder what's going to happen with the Aquarium in the long-term. Caging animals for entertainment in circuses, aquariums and zoos continues to be frowned upon and I don't see that trend abiding. Do those seals and penguins look happy to be in those little tanks, or do they look terrified and constantly pecking at the corners of the tank hoping for escape? I always feel sad when I see them - just like when you see a tiger at the Franklin Park Zoo laying on a rock and giving you a "please kill me" look. I think these zoos are an artifact of the past, not the future.
I am in total agreement with you that zoozs are an anachronism. I do not believe a tiger belongs in Franklin Park for any reason. But I also believe that zoo's do do important work keeping many endangered species alive, and that the science done at zoo's is very important.

Financials aside, the aquarium could be turned into a scientific facility, with almost no visitors, and and offer a sort of "Woods Hole North" focused on the ecosystem of Cape Cod Bay. Short of that 🙄 at the very least, get rid of the penguins. The fact that they are the "moneymakers" is sad. Penguins don't live in Cape Cod Bay.
 

tobyjug

Senior Member
Joined
Jul 21, 2007
Messages
3,282
Reaction score
79
With big screen hi def (and maybe 3-D) TVs no one needs these creature concentration camps. And we don’t need an animal hospital where the aquarium is.
 

Vagabond

Active Member
Joined
Mar 17, 2017
Messages
312
Reaction score
546
Hating on aquariums has absolutely nothing to do with this project...

I actually find it wildly disappointing that the NE Aquarium is in opposition to this project. They lose money most years, and looking at their financials they rely on good contribution years to be net income positive. A partnership with this development would have likely funded a sorely needed upgrade to the facility, tied the waterfront district together much better (and potentially garnered some BID funds), and even improved the parking allocation since the Harbor Tower lease is done next year. Total conspiracy theory... Harbor Tower residents make up a good chunk of that "contributions" line item.

I really liked their Blueway concept drawings and site plan from only 4 years ago:
1617986111146.png



2018 Financials
1617985941312.png

 

stick n move

Senior Member
Joined
Oct 14, 2009
Messages
7,322
Reaction score
1,983
I definitely dont think penguins should be kept in aquariums, but you could still have a pretty good aquarium and a place for kids to learn with jellyfish, horseshoe crabs, and lots of fish, no? Apart from that you could have exibits like the blue whale bones, or models and other things. I think theres a place for the aquarium in the 21st century with added tech and exibits and also as others have mentioned conservation as well. Maybe some will disagree, but I feel there is still a place for the aquarium but with some changes. I dont think we need to shut it down.
 

JeffDowntown

Senior Member
Joined
May 28, 2007
Messages
3,412
Reaction score
703
I definitely dont think penguins should be kept in aquariums, but you could still have a pretty good aquarium and a place for kids to learn with jellyfish, horseshoe crabs, and lots of fish, no? Apart from that you could have exibits like the blue whale bones, or models and other things. I think theres a place for the aquarium in the 21st century with added tech and exibits and also as others have mentioned conservation as well. Maybe some will disagree, but I feel there is still a place for the aquarium but with some changes. I dont think we need to shut it down.
The best aquariums serve as educational tools about the role and importance of the local aquatic ecosystem. So the New England Aquarium should be focused on the North Atlantic coastal aquatic environment. That definitely means no penguins. But there should be a lot about whales and seals, fisheries and shellfish, salt marshes and tidal estuaries, etc. Also messaging around the harm of pollution, like plastics.... Goal is to help shape young minds with sound sustainability knowledge.
 

Top