Appeals court sinks BRA plan for restaurant at the end of Long Wharf

Portion of smoking-gun map. Shaded area covered by federal grant includes pavilion site.

A federal appeals court today ruled the BRA can't turn a Long Wharf pavilion into a restaurant because the structure is protected from commercial use as part of a federal grant detailed on a map the BRA signed off on, then lost - but which a couple of retired National Park Service workers found three decades later.

If the BRA wants to extend what federal judges now call "the long war over Long Wharf," it could ask the entire US Court of Appeals for the First Circuit in Boston to review the ruling by a three-judge appeals panel. If that "en banc" court upholds the ruling, the BRA would then have to convince the US Supreme Court to hear the case.

The BRA and a group of North End residents have been battling over the issue for a decade - in a case that has now cost the BRA upwards of $500,000 in legal fees.

At the heart of the war is $825,000 in federal money the BRA accepted from the federal Land and Water Conservation Fund in 1980 to fix up the then decaying Long Wharf. The grant carried a restriction that the money not be used for "other than public outdoor recreation use." Although the pavilion was built to cover a Blue Line emergency exit, most of the time it is used as a place for people to sit and enjoy the harbor views.

The BRA and the state Department of Environmental Protection said the pavilion was outside the boundaries of the area covered by the grant. As is typical, the BRA could not find the original map it submitted for the federal grant - the authority has long been careless with paper records - so it relied instead on a later map that showed the proposed restaurant site was not included.

The National Park Service at first signed off on the restaurant deal - even as the initial restaurant operator gave up and opened a restaurant in South Boston instead as the legal wrangling went on and on in state court. But in 2012, two retired NPS workers found the original 1980 map - which it turns out the BRA itself had included in its grant application - and a couple years later the park service revoked its approval for the restaurant idea.

The BRA then sued the National Park Service saying its reversal was arbitrary and capricious. Last year, a US District Court judge in Boston ruled against the BRA, saying the park service was not being arbitrary and capricious but was in fact exercising good judgment in reversing a decision it only made because of shoddy record keeping by the BRA.

A three-judge panel in the US Court of Appeals for the First Circuit said today it agreed:

Far from being an unauthorized taking, NPS's determination that the Pavilion area could not be developed for commercial purposes was entirely consistent with both the terms of the LWCF Act and the project agreements. To cinch the matter, the [grant] restrictions were part of the bargain that the BRA struck with NPS in order to secure the financial assistance that it sought to rehabilitate Long Wharf. When a party applies for and receives a federal grant, there is nothing either unfair or unconstitutional about holding the grant recipient to the terms of its bargain.

The court noted that when the MBTA sought federal approval to build the pavilion and emergency exit, the state included a copy of the original 1980 map, not the 1983 map the BRA was trying to insist should be used.

The fact that the Commonwealth felt it necessary to secure NPS's consent, combined with its inclusion of the 1980 map in its correspondence, serves to fortify NPS's determination that the 1980 map was the map of record with respect to the [grant] boundaries.

The court also criticized the very nature of the BRA appeal of the lower court's ruling. The BRA had originally sued based on federal administrative law - hence the "arbitrary and capricious" argument - but in its appeal, the authority asked that the higher court consider whether the National Park Service was depriving the BRA of its rights under contract law. The judges said they were puzzled why the BRA didn't make a contract-law argument to begin with. But having made its legal bed with the administrative arguments, they continued, the BRA would have to lie in it and accept another ruling upholding the park service's administrative right to do what it did, the judges wrote.

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Thanks, Maine: That state's taxpayers might have to pick up part of the tab for refurbishing T buses

The Portland Press-Herald reports a Maine state agency trying to make some extra money by refurbishing vehicles seriously underbid a contract to refurbish 32 MBTA articulated buses (the extra long kind you see on the Silver Line) - to the point where Maine might have to absorb the losses if it can't convince the T to pay more for the work. The Press-Herald notes: "It’s not clear what incentive the Boston-area transit authority would have to pay more for the work."

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Storm a-brewin'

John Gage captured the front rolling across the area this evening.

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Red Line rider gets hand stuck in door; commute suddenly becomes a chore

Somebody got his hand stuck in a Red Line door at Central, somebody else pulled the emergency cord and, boom, instant delays that led to people piling up at stations up and down the line as T workers set about opening the door and re-setting the brake, or whatever it is they do after somebody pulls that cord. At least we know it works.

RedHeadedGirl reports the guy was in the train:

A couple of guys were able to pry the rubber part of the door enough to get him free once we were stopped.

He was real mad it didn't open back up.

Hong Pong and D report they sat inside the train, the doors shut, for 10 minutes.

The T is reporting "moderate" residual delays.

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Century-old building-supply company could make way for used luxury-car dealership in Newmarket Square

Waldo Bros., which has sold building supplies since 1914 on Southampton Street, will be replaced by a car dealership specializing in used luxury cars according to plans filed with the BRA.

Boston Foreign Motor says it will revamp the larger of the two buildings on the site at 202 Southampton St. for use as a showroom and a 21-bay service garage. A smaller building will be knocked down for a 166-space parking lot and landscaping, under the $4.5-million plans.

Boston Foreign Motor owner Milad Farahani and his family have operated car dealerships in the Boston area for more than 30 years, currently at Cambridge Street in Allston. Farahani began working in the family business 15 years ago, when he was just 16.

The Project's urban design goal is to significantly enhance this Newmarket/Southampton Street mixedused corridor by creating a commercially friendly and inviting environment and providing a new commercial storefront, parking, and associated outdoor space. The design concept aims to enhance the Site with a structure that is in scale with the mixed-use development found on Southampton Street and to be consistent with the character of the neighborhood, while improving the quality of the design and construction on the site. The Project aims to create an architectural element that marks the location with a new retail space and highlights the introduction of new construction co-existing with the urban fabric of the larger block.

202 Southampton St. small-project review application (22M PDF).

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JP can haz insurance cat again

Steph gives us our first look at South Street's newest insurance cat. You may recall the previous insurance cat, Ivy, died last month.

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Brighton tapas place closed due to moldy ice machine, sausages left out too long and bugs

UPDATE, 9/26/16: Tasca passed a re-inspection and can re-open.

A Boston health inspector yesterday shut Tasca, 1612 Commonwealth Ave. for a series of violations, most seriously "visible mold" on the interior of the restaurant ice machine and sausages that were left out for 90 minutes at 86 degrees.

Also:

Observed multiple live/dead cockroaches throughout the establishment. Multiple observations of rodent droppings.

The restaurant can re-open after it passes a re-inspection.

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Hey, Martha, you won't believe the great parking space I found right downtown!

The city has been installing bike lanes downtown that are marked off with bollards to keep cars out. But as P. Cheung discovered on Congress Street this morning, the bollards might be a bit too widely spaced.

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You can forget about using the Great Plain Avenue exit off 128 to get to Dedham or West Roxbury this weekend

The state is shutting the Great Ditch Bridge - that nasty little piece of work on the Dedham side of the Great Plain Avenue exit - at 8 tonight for work to get the bridge ready for its replacement by a span on which you won't have to worry anymore you'll get into a crash that will send you into the water.

The bridge will re-open Monday at 5 a.m. with one lane open, with a traffic light to let motorists heading to and from 128 take turns crossing it. MassDOT says that shutting the bridge completely for the weekend will save two months in construction.

Now as to why there's a ditch connecting one loop of the Charles with another, the Needham Historical Society informs us, it was dug in the 1600s to drain the marshes in what's now Cutler Park for cattle grazing.

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