Swimming against Bay State's tideland law

by Robert H. Kuehn Jr. '64
from the Op-Ed page of the Boston Globe 
March 3, 2001

[Webmaster's note: Bob died on June 16, 2006. See obituary and remembrances.]

LAST MONTH my company secured a state permit under the Chapter 91 regulations. The event would not seem noteworthy except that we applied for it in 1986 when Michael Dukakis was governor. The regulatory process has taken 15 years to play out .

Perhaps you are thinking, this guy must have been up to no good and probably deserved to be delayed for a decade and a half. Alter all, Chapter 91 is designed to protect the public interest in Commonwealth tidelands. Hooray for the regulators and the harbor advocates you might say - they showed this developer that the tidelands are a sacred public trust that must be protected against inappropriate development.

What abuse of this trust were we promoting? I plead guilty to unspeakable acts of historic preservation and economic revitalization. Our site is located in a remote corner of the Charlestown Navy Yard - Building No 114, the former joinery shop for the Navy, has sat vacant and fire-damaged since the Yard closed In 1972. I was naive to think that historic preservation was in the public interest or that creating a biomedical research laboratory employing hundreds of people was a public benefit (not to mention that the lab was dedicated to Alzheimer's research). I now realize that the only measure of success under Chapter 91 is public access to the waterfront.

The unique circumstance of Building No. 114 is that this historic structure is directly on the water's edge within the 100-foot tidelands setback. As prescribed by Chapter 91 regulations, this means all of the ground floor and the entire site must be dedicated to "facilities of public accommodation." Unfortunately there was no public to accommodate since this end of the Navy Yard was dilapidated and derelict. This debate dragged on while the building remained vacant and unused.

Chapter 91 allows for variances from the strict application of these regulatory standards, but such exceptions have never been granted. Common sense suggested that Building No. 114 was a good candidate for a variance - an isolated site and a historic building with its own protection, but the Department of Environmental Protection demurred, fearing adverse precedent and reaction from the advocates. This deadlock was broken by the filing of a Municipal Harbor Plan for the site - in effect, a special permit that supersedes the state's "one size fits all" standards.

This process alone, however, took nearly two years for the preparation of the harbor plan together with attendant public hearings, followed by the drafting of a "written determination" in advance of the final license issuance.

After this process, we were optimistic that a license would be issued last summer. But notwithstanding the support of the Boston Redevelopment Authority, the Boston Landmarks Commission, the Massachusetts Historical Commission, and the Department of Environmental Protection, an ad hoc group of 20 or so local citizens appealed. Risking only their $100 filing fee, the appellants triggered a process that would take almost a year to adjudicate. Although we were almost certain to prevail, we settled by offering another $100,000 in waterfront improvements. So the license was finally issued. It speaks volumes when the obtaining of an obscure state permit takes longer than the construction of a $40 million state-of-the-art biomedical facility. It also speaks volumes that the inflexible application of the Chapter 9l regulations ignores other public benefits like historic preservation and economic reuse as well as medical research. And there is something wrong with a law that allows a few dissenters to appeal the decisions of state and local officials to exact additional concessions after years of public hearings and other deliberate reviews.

The state Legislature needs to take a hard look at Chapter 91. The broad intent of the law is laudable - public access to tidelands. But the law's monomaniacal focus on waterfront access to the exclusion of all other public benefits must be tempered.

Although improving under the current administration, the regulatory process is cumbersome, time consuming, and inflexible. Reasonable "safe harbors" for compliance need to be defined so that plans can be advanced without being held hostage to the whims of regulators.

Once approved, such plans should be protected from frivolous appeals which add to the delays and uncertainties. Without such reforms, the promise of revitalized waterfronts is not likely to be realized within our lifetimes.

Robert H. Kuehn Jr. is an adviser to the National Trust for Historic Preservation and vice chair of the Community Preservation Coalition.