Massachusetts limits requirements for urban renewal zoning variances

April 25, 2013

In 1972, Massachusetts amended its constitution to include a provision that "[t]he people shall have the right to clean air and water, freedom from excessive and unnecessary noise, and the natural, scenic, historic, and esthetic qualities of their environment." Public lands used for these environmental purposes (under Article 97 of the Massachusetts Constitution) cannot be converted to another use or sold without the approval of two-thirds of both houses of the state legislature.

What constitutes land used for Article 97 purposes was the subject of a recent case heard by the Massachusetts Supreme Judicial Court.

Mahajan v. Department of Environmental Protection

The case arose when the Department of Environmental Protection issued a waterways license to the Boston Redevelopment authority to redevelop land it owned on filled tidelands along the Boston Harbor, namely the Long Wharf pavilion. The BRA had obtained these tidelands by eminent domain in 1970. In 2008, it proposed to redevelop the land by expanding the pavilion and adding a restaurant with takeout service, outdoor seating and a bar. The Boston Zoning Board of Appeals ultimately issued 14 zoning variances for those purposes.

Ten residents of Boston's North End neighborhood challenged the license, claiming that because the legislature had not approved the redevelopment it was unconstitutional. They also argued the restaurant would create too much noise and was inappropriate for the location.

The Court ultimately ruled that in granting the license, the DEP did not violate the state's constitution. It held that while the BRA's taking of the waterfront property did affect the "public purpose" of the property, those public purposes did not fall under the environmental and other protections of Article 97. Instead, the BRA originally took the property for urban renewal, which the court clarified is "for the purpose of eliminating decadent, substandard or blighted open conditions" -- and such redevelopment projects do not need approval from the state legislature.

Zoning variances and litigation

Developers of Boston waterfront real estate should be heartened by the outcome of this decision by the state's highest court, the result of a four year legal battle. However, there are still myriad requirements developers must meet before moving on with a development project that may involve local planning boards, the Boston Zoning Board of Appeals or a historic district commission.

Developers concerned with zoning or environmental litigation resulting from a new development or restoration project should consult with an experienced Boston real estate law firm to ensure they meet zoning requirements and are well represented in the event of litigation.

Article provided by Sally & Fitch LLP
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