It may look like a park and have people walk in it like it's a park, but the far end of Long Wharf isn't a park, the Supreme Judicial Court ruled today.
The ruling is a victory for the Boston Redevelopment Authority, which wants to turn an open-air kiosk-like structure there into a restaurant.
A group of ten North End residents has fought the idea for years - and won a victory in Suffolk Superior Court, when a judge ruled that end of Long Wharf was a park on which a restaurant could not be built without a two-thirds vote of the state legislature, under a section of the state constitution that pertains to the preservation of parkland and open space.
But the state's highest court ruled today that intent is everything, and that the BRA took over the wharf in 1970 under its authority to revitalize the area and promote real-estate development - as part of an urban-renewal plan dating to 1964 - rather than to put a park in. Therefore, the court concluded, the area is not subject to the constitutional restriction, known as Article 97:
Given the overarching purpose of the 1964 urban renewal plan to eliminate urban blight through the comprehensive redevelopment of the waterfront area, including its revitalization through the development of mixed uses and amenities, it cannot be said that the retention of certain open spaces, like the project site, is sufficiently indicative of an art. 97 purpose as to trigger a two-thirds vote of the Legislature should the BRA wish to slightly revise the use of certain spaces in a manner consistent with the objectives of the original urban renewal plan. [FN18] The fact that the 1964 Urban Renewal Plan (which covered a large section of downtown Boston) provided in general terms for open spaces and pedestrian access to the water's edge is itself insufficient to invoke art. 97 protections for parts of the original taking that ultimately serve those general purposes. The single, fleeting reference in the 1964 urban renewal plan to an "observation platform" on Long Wharf similarly fails to adequately invoke the specific purposes of art. 97.
The issue now goes back to Suffolk Superior Court, where a judge will hear arguments from the residents on why the project might violate a separate section of state law relating to protection of harbors and waterfronts. The state has already granted the city permission under that law; the judge in the earlier decision, however, did not rule specifically on that issue.
If the BRA does win in Superior Court, it will have to find a new restaurant operator willing to invest in turning the "pavillon" - which consists largely of a roof over an emergency exit for the Aquarium stop on the Blue Line - into a restaurant. The restaurant operator the BRA selected in 2008 finally got tired of the wait and used the liquor license it had won from the city to open a restaurant in South Boston instead.
At the time, BRA plans called for enclosing the pavilion and adding a patio area - but leaving the bulk of the open area open to the public.