Boston Waterfront Condo Case Reminds Us Who Can Enforce Public Trust Principles – Update from McGregor Legere & Stevens, PC

Written by Gregor I. McGregor, Esq.

Commercial Wharf East Condominiums and Boston Boat Basin (right).
Commercial Wharf East Condominiums and Boston Boat Basin (right).

Property owners lack legal authority to use private litigation to enforce their public trust rights. Only the Commonwealth may enforce public trust rights in Commonwealth tidelands and other waterfront areas.

That important principle was reinforced in the Massachusetts Appeals Court’s July 10, 2018 decision in the case of Commercial Wharf East Condominium Assoc. v. Boston Boat Basin, LLC, 93 Mass. App. Ct. 523 (2018).

Plaintiff was an association of owners of condominiums located at the landward end of Commercial Wharf in Boston. Defendant owns an inn and marina at the seaward end of Commercial Wharf.

The Association filed suit to enforce certain property use restrictions benefiting it and burdening Boston Boat’s operations (regulating parking and deliveries, prohibiting commercial boats selling alcohol or allowing gambling, and limiting “special events.”)

Boston Boat in defense argued the restrictions should be void because they unduly restrict the public’s access and use of the Boston Harbor waterfront in violation of the public trust doctrine.

In other words, Boston Boat as a defendant sought to enforce privately the rules governing the present and formerly filled public tidelands, and state licenses granted for use of the shorefront.

Readers may know that the public trust doctrine protects the public’s rights to fish, fowl and navigate on private tidelands, which are defined by state statute as “present and former submerged lands and tidal flats lying below the mean high water mark.” G.L. c. 91, § 1.

This case involves “Commonwealth tidelands” (as opposed to “private tidelands”), which are defined as “tidelands held by the commonwealth in trust for the benefit of the public or held by another party by license or grant of the commonwealth subject to an express or implied condition subsequent that it be used for a public purpose.” G.L. c. 91, § 1.

In rejecting the Boston Boat’s argument that the restrictions on use of its own property violate the public trust doctrine, the Appeals Court made clear that litigation between private parties may not be used as a vessel to enforce public trust rights. Public trust rights may be enforced only by the Commonwealth and entities to which the state Legislature has delegated that enforcement authority. The Legislature has delegated that authority to the Massachusetts Department of Environmental Protection (MassDEP) through the Chapter 91 licensing process.

The Appeals Court relied on what it described as “the Supreme Judicial Court’s consistent and strict enforcement of the express delegation requirement” to “reject the argument that the proper extent of public trust rights in a particular locus may be determined in private litigation such as the present case.”

Rather, the Appeals Court concluded that MassDEP had already weighed the conflict between private rights and public trust rights when it issued a Chapter 91 license to the Boston Boat’s predecessor in the property. Critically, that license required Boston Boat to “allow public access on foot to its pier, unless it is determined that [Defendant] ‘does not have the legal right to provide such access.’ ”

Consequently, the Appeals Court ruled that MassDEP’s “special role in this area” makes that agency responsible for “determin[ing] whether Boston Boat is currently using the locus in accordance with the license and, if not, how best to proceed in order to vindicate public rights.”

A practical lesson here for the real estate, land use, environmental, and law enforcement communities is that a private party wishing to protect public trust rights in Commonwealth tidelands (by challenging the issuance of, conditions imposed by, or compliance with a Chapter 91 license) must utilize appropriate channels at MassDEP rather than bringing it up for the first time in court.

Waterfront owners, tenants and operators are well advised to understand the public trust restrictions under which they own, lease or occupy their properties, which are subject to the easement-like reserved public rights on private tidelands, the sovereign rights of the public on public tidelands, and the powers, duties, permits and procedures of MassDEP as the delegated entity chosen by the Legislature to license and enforce these principles.