Law Clears Path for Tidelands Development

(Read more on the multifamily market.)

BOSTON-Gov. Deval Patrick has signed a bill that exempts non-waterfront properties on landlocked, filled tidelands from having to obtain Massachusetts General Law Chapter 91 licensing, a provision established generations ago to regulate activities and development along the state’s waterways. The Massachusetts Department of Environmental Protection administers Chapter 91 licensing.

In practice, the department had been exempting non-waterfront properties located on filled tidelands from Chapter 91 licensing since 1990. However, this February, the state’s Supreme Judicial Court ruled that the department lacked the authority to exempt properties located on filled tidelands that are at least 250 feet from the water and separated from it by a public way.

This overturned a lower court ruling in a case in which citizen petitioners sued the state DEP for excluding the $2-billion NorthPoint mixed-use project from Chapter 91 licensing. The Supreme Judicial Court did not fault the developers, but ruled that DEP had “acted in excess of its authority,” because the exemption was not authorized by law.

In response to the court ruling, the state legislature crafted, and Patrick signed a bill that restores the exemption. It legally returns authority in this matter to DEP and re-establishes title clarity for such properties.

“Until the legislature clarified the status of that regulatory exemption,” Patrick says in a statement, “a cloud hung over the title of properties in 3,000 acres of Boston alone and another 1,000 acres across the commonwealth. This new law provides predictability for land development and protects the public interest,” he adds.

The Massachusetts chapter of Naiop applauds the legislature and Patrick for passing the bill. David Begelfer, CEO of the chapter, tells GlobeSt.com, “we are back to the status quo, which has been in effect for 17 years.” The bill not only establishes the legitimacy of many existing commercial properties, but also gives many that are under way or under consideration “a clear shot,” he says.

“NorthPoint has a clear run now, along with a Back Bay project near Prudential Center, some major projects totaling as much as four million sf in the seaport area and many projects in the North Station area of Boston, to name a few,” Begelfer says. “Actually Fenway Park, home of the Red Sox, is even included in an area that the court ruling put into question,” he adds.