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July 13, 2018

Legal Update
Kenneth N. Thayer

Private land owner in Chapter 91 tidelands lacks authority to invoke the public trust doctrine to challenge validity of land-use restrictions

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The Massachusetts Appeals Court has confirmed that private parties may not use litigation to seek enforcement of “public trust rights” in tidelands governed by M.G.L. c. 91 (“Chapter 91”) outside of the Chapter 91 licensing program. In its July 10, 2018 decision in Commercial Wharf East Condominium Assoc. v. Boston Boat Basin, LLC, the Appeals Court rejected a landowner’s claims that certain legal and contractual restrictions that had been placed upon its use of its waterfront marina property violated the public trust doctrine because they limited the public’s access to that property.

At issue in this case was Boston Boat Basin’s marina on the seaward side of Commercial Wharf in Boston Harbor. The marina is accessible to the public only by way of an easement over the Commercial Wharf East Condominium Association’s (“CWCA”) property—which encompasses the landward portion of the wharf. The party that owned the land prior to Boston Boat had obtained a Chapter 91 license from the Massachusetts Department of Environmental Protection (“MassDEP”), which authorized construction and maintenance of the recreational boating facility and accessory uses, such as a restaurant.

Prior to Boston Boat’s acquisition of the property, several restrictions had been placed on the property’s use, either as terms of the CWCA easement or as a result of a previous settlement between CWCA and the predecessor-owner. These restrictions included prohibitions on using the property as a “function hall” or as a dock for so-called party boats, except in narrow, limited circumstances.

CWCA filed suit against Boston Boat’s predecessor in 2006 in Massachusetts Land Court to enforce these restrictions, and obtained a preliminary injunction requiring the predecessor to comply with the restrictions as interpreted by the court. In 2010, Boston Boat acquired the property and was brought into the lawsuit. CWCA eventually asked the court to hold Boston Boat in contempt, claiming that it had violated the injunction by hosting a party that was tantamount to using its marina as a function hall. In a December 2016 order, the court held Boston Boat in contempt for violating the injunction.

Boston Boat appealed from the Land Court’s decision, claiming that the land use restrictions violate the public trust doctrine because they unduly restrict the public’s ability to use and enjoy the tideland portion of the property. Boston Boat also challenged the contempt order, claiming that it could not be held in contempt of an injunction that had not been issued specifically against it, but was rather issued only against its predecessor in title.

The Appeals Court rejected Boston Boat’s first argument, holding that, as a private entity, Boston Boat had no authority to seek judicial enforcement of public trust rights in a private litigation. Quoting an earlier decision by the state Supreme Judicial Court, the Appeals Court held that “only the Commonwealth, or an entity to which the Legislature has delegated authority expressly, may act to further public trust rights.” As the Appeals Court explained, the Massachusetts legislature has designated MassDEP as the agency with authority to protect public trust rights in tidelands through its Chapter 91 license-granting powers, and that pursuant to its authority, MassDEP ensures that tidelands be used only for water-dependent purposes and other proper public uses.

In rejecting Boston Boat’s claim that the land use restrictions should be lifted as a means of preserving the public’s use and enjoyment rights in this tideland property, the Appeals Court ruled that the Legislature did not authorize Boston Boat (or any similarly situated private entity) to invalidate property restrictions or otherwise act in furtherance of public trust rights. More broadly, the court held that “the proper extent of public trust rights in a particular locus” may not be “determined in private litigation;” rather, the protection of those rights falls to MassDEP in its license-granting and license-enforcement capacity. (Private parties may participate in the Chapter 91 licensing process and, subject to principles of standing, appeal the grant and/or terms of a Chapter 91 license, both in administrative proceedings and in litigation.)

Here, the Appeals Court found that MassDEP had issued a Chapter 91 license that was not, by its terms, intended to preclude any and all restrictions that might affect the public’s access to Boston Boat’s property.  MassDEP acted within its authority by setting the terms of the Chapter 91 license in such a way as to permit the land use restrictions at issue and Boston Boat could not challenge MassDEP’s decision.

Next, the Appeals Court considered whether the preliminary injunction against Boston Boat’s predecessor in title was applicable to Boston Boat as well, such that its hosting of a party could be valid grounds for a finding of contempt. The Land Court had answered that question in the affirmative, but the Appeals Court said “no.” In reversing the Land Court’s decision and holding that Boston Boat could not be held in contempt for violating a preliminary injunction to which it was not a party, the Appeals Court held that (1) it was significant that this was a preliminary injunction, rather than a final judgment; (2) there was no evidence that Boston Boat had engaged in any concerted activity with its predecessor to undermine the preliminary injunctive order; and (3) Boston Boat, upon entering the litigation after acquiring the property, had reserved its rights to contest the restrictions placed upon the property, including the earlier-issued preliminary injunction. The latter point demonstrates the substantial value of articulating an explicit reservation of rights in the litigation context.

By confirming that judicial relief is generally unavailable to landowners in Boston Boat’s situation (i.e., tideland owners who seek to be relieved of otherwise applicable legal restrictions on the basis of the public trust doctrine), this decision provides a useful reminder of the MassDEP’s “preeminent responsibility in enforcing public trust rights through the [Chapter 91] licensing process.” In addition, the decision clearly illustrates the potentially dispositive limitations on the reach of a preliminary injunction prohibiting certain conduct on a particular property, vis-à-vis the successors in title to a landowner who is bound by such an injunction.

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