Court rules Rockport path to the sea is open to the public based on map from 1819

By adamg on Wed, 07/16/2014 - 11:52am

In a decision that hinged on copies of deeds and maps dating to 1813 - and in particular, an 1819 map - the Massachusetts Appeals Court ruled today the public has the right to walk atop a seawall that a Rockport shopkeeper has been trying to keep shut.

In 2005, Wendy Stone-Ashe put a fence across the path in front of her property at 25 Dock Square. The state got involved, saying the fence was against the law because the seawall extended past the historic high-water line into tidelands over which the state has jurisdiction.

The case wended its way through state regulators, a state appeals board and Superior Court, where each side presented its own experts to battle over just where the high-water mark was there and when the seawall was actually built.

The state Department of Environmental Protection initially sided with residents who wanted the path re-opened. Stone-Ashe appealed to an administrative magistrate, who agreed with her, but then the state commissioner of environmental protection overturned that and sided with the residents, which sent Stone-Ashe to Superior Court, where she lost, so she appealed to the next higher court.

In its ruling, the Massachusetts Appeals Court said that looking back, the key part of the seawall was well past the historic high-water mark after which the state has say - with that "historic" mark being defined as the place where the high-water mark would have been before people started doing things like dumping fill to extend coastlines.

When superimposed on the present location of the seawall-walkway, the 1819 map places the high water mark landward of the seawall-walkway. ... While the plaintiff's surveyor suggests that the map is unreliable because we cannot travel back in time to evaluate the work, that rationale would apply to any historic map. The department, by regulation, has determined that reliance on historic maps is appropriate. ... Accordingly, based as it is on expert testimony comparing the 1819 map with current conditions, we have little difficulty concluding that the commissioner's decision is based on substantial evidence and we discern no error in the decision of the Superior Court judge upholding the final decision of the commissioner.

BRA files suit against National Park Service over waterfront access

The BRA continues to fight for a waterfront restaurant on Long Wharf along Boston Harbor.

Thomas Grillo

Despite a Superior Court ruling last year that voided a license to convert a Long Wharf pavilion on Boston's waterfront into a 220-seat restaurant, the Boston Redevelopment Authority has filed suit in federal court to overturn the decision.

In a filing at U.S. District Court on Monday, the BRA is suing the National Park Service, alleging that the federal agency arbitrarily expanded the boundaries of protected park space on Long Wharf and prevented construction of a restaurant on the city-owned waterfront parcel.

The dispute commenced in 2006 when the BRA awarded the license to build "Doc's Long Wharf," a $1 million restaurant on Long Wharf to Michael Conlon, owner of Eat Drink Laugh Restaurant Group, which operates the Paramount on Charles Street and the 21st Amendment on Beacon Hill. Under the terms of the deal, Conlon's 10-year lease, with an option for an extension, would cost $142,500 annually, minus a $60,000 credit for the first five years to offset construction costs. The proposed 4,655 square-foot restaurant with an outdoor cafe would contain 220 seats and replace the pavilion located beyond the Marriott Hotel and Chart House restaurant.

But a group of North End neighbors, dubbed the "North End Ten," filed suit in Superior Court, alleging the eatery would violate open space protection, and eliminate views of Boston Harbor. While the group initially lost the court fight in 2007, Sanjoy Mahajan, one of the neighborhood plaintiffs, later uncovered a 1980s state-city agreement and an accompanying map that revealed the BRA had promised to forever preserve the Long Wharf space for outdoor recreation.

As a result of the new information introduced in court, last year Suffolk Superior Court JudgeElizabeth Fahey voided a permit issued by the Department of Environmental Protection to operate the restaurant on the BRA-owned land.

The BRA lawsuit contends that the space reserved for the restaurant is not restricted open space, alleging the protected land is on the adjacent plaza.

"The BRA simply wants to crush any opposition," said Mahajan. "We have tried to have the case mediated, but the BRA has not shown any interest."

Michael Conlon did not return a call seeking comment.

A spokesman for the National Park Service and the Boston Redevelopment Authority said they do not comment on pending litigation.

In the past, the BRA has argued that a waterfront restaurant would activate that section of Boston Harbor.

Jamy Madeja's analysis of tidelands, submerged lands and Public Trust rights following the Arno and Alliance decisions was published in the December 2010 issue of the Massachusetts Lawyer's Journal. The article is available here .

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