The so-called “Long War Over Long Wharf” continues to rage between the Boston Planning and Development Agency, officially known as the Boston Redevelopment Authority (BRA), and a group of concerned North End residents known as the “North End Ten.” Despite suffering a series of three consecutive losses in court, the latest of which occurring as recently as March of 2017, the BRA continues to seek permission to build a new restaurant on Boston’s historic Long Wharf.
To understand this case, we need to start at the beginning. In 1980, the BRA applied for a grant under the Land and Water Conservation Fund (LWCF) Act to fix up Long Wharf, which was at that time run-down and dilapidated. The LWCF program is managed by the National Park Service (NPS), and administers grants for the development of land for “public outdoor recreation use.” The BRA received about $800,000 in grant money, and the result was the construction of Long Wharf Pavillion.
However, the LWCF Act comes with a catch. Section 6(f) of the act states that any land “acquired or developed” with LWCF money cannot be “converted to other than public outdoor recreation use.” Land protected by the act is referred to as a “6(f) area,” and is decided upon during the grant application. Any development which is unrelated to public outdoor recreation use is disallowed on 6(f) areas — forever.
Fast-forward to 2006, and the BRA suddenly had new plans for Long Wharf: the construction of a brand new restaurant and bar, to be titled “Doc’s Long Wharf.” Because such a project would normally be disallowed under Section 6(f), the NPS contacted the Massachusetts Division of Conservation Services (DCS) to confirm whether or not the planned location was on a 6(f) area. The DCS produced a map from 1983 showing that the restaurant would be outside the boundaries of the 6(f) area, so the NPS gave the project a thumbs-up in 2009.
Meanwhile, the North End Ten had been challenging the restaurant’s construction on the grounds that Long Wharf was protected parkland. The Massachusetts Department of Environmental Protection (DEP) issued a construction license to the BRA in 2008, but the North End Ten, backed by the Sierra Club, claimed that this was a violation of Article 97 of the State Constitution. Article 97 states that any change in the use of protected land requires a two-thirds vote from the legislature, and the license would not be valid without it.
In 2012, the Superior Court ruled in favor of the North End Ten, stating that Long Wharf was protected by Article 97 and further development required approval from the legislature. This was a major victory for the North End Ten, but it was short-lived, as the BRA immediately appealed the decision to the Supreme Judicial Court. The Supreme Judicial Court made its decision in early 2013, and stated that although Long Wharf had park-like features, it had not been acquired for Article 97 purposes, and had no special protections.
As it turns out, however, this defeat would prove unimportant. A story about the case which had been published in the Boston Globe in the fall of 2012 gained the attention of a retired NPS employee. The former employee recalled that a much larger portion of Long Wharf was included in the 6(f) area than the 1983 map indicated, including the location of the future restaurant. He contacted the NPS about it, and when they checked their archives, they found a map from 1980 which matched the employee’s memory. The NPS claimed that the 1980 map was the correct one, and reversed their 2009 approval of the project.
The BRA, unhappy about the change of heart, attempted to convince the NPS in 2014 that the 1983 map was the real one. When that failed, they sued the NPS in 2015 under the Administrative Procedure Act, asserting that the decision to follow the 1980 map was “arbitrary and capricious.” The court shot down this argument: there was ample evidence indicating that the 1980 map was in fact the correct map. Other maps found in the BRA archives were very similar to the 1980 map, and the original grant proposal referred to notation which only existed on this map. In contrast, there was almost no evidence in favor of the 1983 map; in fact, that map would not have even existed when the BRA made its grant proposal. Thus, the court concluded that the NPS was perfectly reasonable to rely on the 1980 map rather than the 1983 one.
The BRA also sued under the judicial estoppel doctrine, which disallows parties from contradicting their previous statements in court when it is convenient for them. This argument was also rejected, as the NPS reversed its 2009 decision to correct an honest mistake based on incomplete evidence; any benefit gained from doing so was coincidental. Additionally, courts almost never apply the judicial estoppel doctrine to government agencies anyway, as doing so would upset the balance of powers. The court chastised the NPS for solely relying on the DCS’s research and failing to investigate its own records from the outset, but sided in their favor on all counts.
Despite (or perhaps because of) this overwhelming failure, the BRA appealed the decision in 2016. In addition to its original argument, the BRA added further arguments: the NPS was illegally “attempt[ing] to encumber land”; the 6(f) requirements only apply to land “acquired or developed” with LWCF grants, and they only used the money for “planning”; and the NPS violated the BRA’s due process rights by failing to give them the opportunity to prove the 1983 map was correct.
For the original argument, the appeals court responded identically to the district court: evidence pointed to the 1980 map and being correct, and it was perfectly reasonable for the NPS to rely on it. The court waived the new arguments since they had not been brought up in district court, but responded to them anyway. For the first argument, the court said that it “elevate[d] wordplay to an art form,” and any question about the legality of the NPS’s actions had been settled in district court. For the second argument, the court noted that the distinction between development and planning was arbitrary, and recognizing such a distinction would create a massive loophole in the LWCF Act. For the third argument, the court pointed out that the BRA did have an opportunity to make its case at their 2014 meeting. Thus, the decision was once again in favor of the NPS on all counts.
Even after all this, there was still more litigation. When the Supreme Judicial Court ruled in 2013 that the area was not protected by Article 97, they remanded the issue of whether or not the BRA could get a construction license back to the Superior Court. The BRA and DEP, knowing that they would inevitably lose, requested that the case be dismissed in 2016. The North End Ten claimed that the agencies only wanted a dismissal because it would be less damaging than an actual ruling.
In the end, the court did make a ruling in March 2017, in which they stated in no uncertain terms that the 1980 map is definitively correct, the location where the restaurant was planned lay inside the boundaries of the 6(f) area, and that the area would remain protected by the LWCF Act “in perpetuity.” Yet even after this third consecutive loss, the BRA has appealed the decision. As of right now, the future of the case remains uncertain.
The “Long War Over Long Wharf” has been ongoing for nearly a decade at this point. What started as a seemingly hopeless case for the residents turned completely around after the discovery of one vital piece of evidence. Although the fighting appears to be coming to an end, with the North End Ten and the NPS coming out on top, the BRA has shown that they aren’t willing to tap out just yet. Although another win for the North End Ten is expected, the ultimate result of the appeal is still up in the air.
-- Michael Bader, Sierra Club intern