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Real Estate Developers take note of the recent "Landlocked Tidelands" exemption

Jo-Ann Marzullo February 1, 2007

In a decision that will cause trepidation in the sale and development of filled tidelands in Massachusetts, the exemption for landlocked tidelands promulgated by the Department of Environmental Protection(“DEP”) in 310 Code Mass. Regs. s.9.04(2) was found by the Supreme Judicial Court to exceed the Department’s authority and was ruled invalid in Moot v. Department of Environmental Protection (SJC-09774) on February 12, 2007.

The Court held that Massachusetts General Law c. 91, s. 18 as amended in 1983 requires that the DEP hold a public hearing and make a written determination that a nonwater-dependent use of filled tidelands serves a “proper public purpose” and the exemption prevented this process.

The ruling involved the development known as North Point in mostly in East Cambridge, but also in Boston and Somerville, bounded by Monsignor O’Brien Highway, the Gilmore Bridge and the Massachusetts Bay Transportation Authority rail lines and maintenance facility.

The site was filled by the Boston and Maine Railroad in 1962 by constructing underground culverts to serve the drainage function of the Millers River under a chapter 91 license issued by the Department of Public Works according to the decision.

Without the benefit of the landlocked tidelands exemption, it will be necessary to show an act of the General Court relinquishing the rights to filled tidelands such as for the Back Bay and South Boston.

The invalidated regulation had the following definition:

Landlocked Tidelands means any filled tidelands which on January 1, 1984 were entirely separated by a public way or interconnected public ways from any flowed tidelands, except for that portion of such filled tidelands which are presently located:

(a) within 250 feet of the high water mark, or

(b) within any Designated Port Area. Said public way or ways shall also be defined as landlocked tidelands, except for any portion thereof which is presently within 250 feet of the high water mark.

The ability to use filled land is affected by laws going back to the Massachusetts Body of Liberties of 1641, which grants the public the right to fish and fowl tidelands:

16.  Every Inhabitant that is an howse holder shall have free fishing and fowling in any great ponds and Bayes, Coves and Rivers, so farre as the sea ebbes and flowes within the presincts of the towne where they dwell, unlesse the free men of the same Towne or the General Court have otherwise appropriated them, provided that this shall not be extended to give leave to any man to come upon others proprietie without there leave.

The Body of Liberties is considered to be the progenitor of the Massachusetts Constitution and the Bill of Rights of the United States Constitution.  Separate wharfing statutes were passed over the years, and in 1866 a General Law (now chapter 91) was passed to govern the tidelands and Great Ponds.  The right to fish and fowl on tidelands have been carried forward in Massachusetts General Laws Chapter 91, section 1 defining private tidelands:

“Private tidelands”, tidelands held by a private party subject to an easement of the public for the purposes of navigation and free fishing and fowling and of passing freely over and through the water.

The continuing right to fish and fowl allows public access to tidelands and beaches, which has often been fought by private property owners.  But, an addition to the Body of Liberties, also called the Colonial Ordinances, was made in 1647, which provided as follows:

"[i]t is declared , that in all creeks, coves, and other places about and upon salt water, where the sea ebbs and flows, the proprietor, or the land adjoining shall have propriety to the low water mark, where the sea doth ebb above a hundred rods, and not more wheresoever it ebbs further: provided, that such proprietor shall not by this liberty have power to stop or hinder the passage of boats or other vessels, in or through any sea, creeks or coves, to other men’s houses or lands."  Home for Aged Women v. Commonwealth, 202 Mass. 422, 426-37 (1909) quoting Anc. Chart. 148, 149.

For more information on this subject, please contact Jo-Ann Marzullo at jmarzullo@pbl.com.

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