CLF Questions Secretary’s Chapter 91 Discretion

Foley Hoag LLP - Environmental Law

Last week the Conservation Law Foundation (CLF) announced it has filed suit against EOEEA Secretary Beaton and DEP Commissioner Suuberg for actions associated with the approval of an amendment to the South Boston Waterfront District Municipal Harbor Plan.  In the Commonwealth, coastal communities can create Municipal Harbor Plans (MHPs) to guide planning and development along the shoreline.  If approved by the Secretary, MHPs can create substitute provisions that modify the Commonwealth’s underlying Chapter 91 standards governing public and private use of land and water along the coastline.

The South Boston Waterfront District MHP Amendment, approved by the Secretary on December 21, 2016, created such substitute provisions applicable only to an approximately half-acre site located at 150 Seaport Boulevard.  The site is currently home to two single-story restaurants, but is proposed to be redeveloped as a residential tower.  The substitute provisions pave the way for construction of a building 250 feet tall (vs. the 55 feet allowed under baseline regulations), for lot coverage up to 75% (vs. the 50% maximum allowed under baseline regulations), and for a reconfiguration of the water-dependent use zone (in which housing and other uses unrelated to the water are not permitted.)

CLF’s complaint alleges that the Secretary abused his discretion in approving this MHP amendment and that his decision was arbitrary and capricious.  CLF argues that the Commissioner has an independent duty to ensure that a proposed MHP complies with the public purposes of protecting the Commonwealth’s rights in tidelands and that the Commissioner cannot delegate this duty to the Secretary.  CLF requests multiple forms of relief, including injunctive relief preventing the Commissioner from issuing a Chapter 91 License for the site.

The case has the potential to be important, not just in the intersection of Chapter 91 and MHPs, but for administrative law in Massachusetts more generally.  The scope of the Secretary’s discretion in these cases is not exactly crystal-clear.  Just how unfettered is it?  Similarly, how expansive a record must the Secretary put together in order to satisfy a court that substantial evidence supports his decision?

We’ll be watching this one closely, given our front-row seat.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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Foley Hoag LLP - Environmental Law

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