The Massachusetts Appeals Court ruled today that the state can decide whether to force the owners of condos at Commercial Wharf to abandon the wharf space they now use for parking, because they never received a formal state license to use the waterfront land for stowing cars.
Technically, the Commercial Wharf condo owners have to seek a license to keep using the parking spaces, but that would be under the state waterways law, which normally bans the use of "Commonwealth tidelands" for uses that are not in the public interest without a state license. Granted, a license might not be impossible to obtain, as anybody familiar with changes in the Boston waterfront over the last 20 years might attest, but it could prove a long battle, given that the condo association and the owner of the marina at the end of the wharf have been feuding in court for years now.
The state waterways law grants the state the right to oversee development and construction in coastal areas - with Boston Harbor singled out for particular attention.
The wharf has had condo parking spaces since the 1970s, after a developer bought the rights to the decaying but historically important granite building from the BRA - which in turn won control of the wharf from the state in 1964. The legislature twice voted to give the BRA authority over the wharf and its redevelopment, and the state never looked into the legality of the parking spaces under the current state waterways law until 2011, when the owner of Boston Yacht Haven asked the state Department of Environmental Protection to look into the matter, which it did.
The appeals court concluded that the current waterways act has no exceptions, so even if the legislature gave the BRA control of the site and that parking has been going on there for decades, the 12,000 square feet of space now used for parking needs a state license - in part because neither of the legislative acts specified that that exact area would be used for parking.
To get to that point, the court first had to look at the site's history and the Massachusetts wharfing acts of the early 1800s, specifically, the 1832 act allowing construction of Commercial Wharf and its five-story granite building, which, as the name implies, was initially built for the sea trade. The current waterways act specifically excludes parking for non-marine uses without a state license.
Legal briefs by the state and the condo association.