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

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.