Creating Thriving Communities Through Land Use And Real Estate Law

Open Space Proponents Win in Long Wharf Battle

In what can only be described as a complete win for the National Park Service, and those residents of Boston that wished to see Long Wharf remain open to the public, the United States District Court for the District of Massachusetts has granted summary judgment in favor of the NPS and against the Boston Redevelopment Authority in Boston Redevelopment Auth. v. Nat’l Park Serv. & Sally Jewell (USDC MA Aug. 26, 2015), upholding an administrative decision by NPS that the end of Long Wharf is within an area restricted to public outdoor recreation use, and therefore cannot be developed into a restaurant.

This decision, coming at the end of what the Court calls the “Long War for Long Wharf,” began in 2006 when the BRA began considering the possibility of converting the pavilion on Long Wharf into a restaurant.  Long Wharf has been subjected to a use restriction since 1981 as part of a federal grant, authorized by the 1965 Land and Water Conservation Fun Act, which allowed the BRA to reconstruct Long Wharf in exchange for agreeing that the land developed with the funds would not be “converted to other than public outdoor recreation use.”  However, BRA took the position that the pavilion did not fall into the restricted area, and therefore could be developed for commercial use.

After initially concluding that the pavilion did not fall within the restricted area as set out on a 1983 map, two former NPS employees, alerted by newspaper articles discussing the potential development, altered the NPS to an earlier 1980 map which included the pavilion in the restricted area.  After searching their files more thoroughly and considering the additional evidence, NPS changed its position and concluded in its final decision that the pavilion was in the restricted area, and therefore could not be converted to commercial use.

Unsurprisingly, the BRA was not happy with this decision.  It sought to overturn the NPS’s decision, raising challenges under the Land and Water Conservation Fund Act, the Administrative Procedure Act, the Declaratory Judgment Act, and the judicial estoppel doctrine.  After extensive discussion and consideration of materials in and outside the administrative record, the Court conclusively found that the NPS was well within its authority in rendering its final decision that the pavilion is within the restricted area.

An appeal may follow, but for the moment those fighting to keep the waterfront open to public use can celebrate a conclusive judgment in their favor.