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Michael Leon and Mary Ryan serve as co-counsel on amicus brief in the monumental case of Moot v. Department of Environmental Protection

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September 2009

Mary K. Ryan and Michael A. Leon, members of the firm’s Land Use, Permitting and Development and Environmental practice groups, served as co-counsel on an amicus brief on behalf of The Real Estate Bar Association for Massachusetts, Inc. and The Abstract Club, in the monumental case of Moot v. Department of Environmental Protection (“Moot”), with respect to the Legislature’s authority to exempt landlocked tidelands from regulation under General Laws Chapter 91.  

Under the public trust doctrine, the Commonwealth of Massachusetts holds submerged tidelands in trust for the benefit of the public. Regulation of tidelands under Chapter 91 stems from that doctrine, as a delegation of the Commonwealth’s authority to regulate the public’s rights in tidelands to the Department of Environmental Protection (“DEP”).

The original Moot case arose from a challenge by a ten-citizens group to the DEP’s determination that the proposed North Point development in Cambridge was exempt, under the DEP’s regulations, from Chapter 91 licensing requirements because the tidelands in question were landlocked. The tidelands had been filled pursuant to a Chapter 91 license issued in 1962. In that case, the Supreme Judicial Court held that the DEP exceeded its authority by promulgating a regulation exempting landlocked tidelands from Chapter 91 jurisdiction. The judgment was stayed to provide the Legislature an opportunity to take any action it might deem appropriate because of the decision.

The Legislature subsequently passed Chapter 168 of the Acts of 2007 (the “2007 Tidelands Act”), which serves to exempt landlocked tidelands from review under Chapter 91, thereby upholding the landlocked tidelands exemption originally promulgated in the DEP regulations. The present case was brought by the original plaintiffs, who claim that the Legislature exceeded its authority in enacting the 2007 Tidelands Act and that the conditions of the 1962 license related to the North Point property are valid and enforceable, including a requirement for a new license for a change in use.

A finding that the 2007 Tidelands Act is not an effective or valid exemption from Chapter 91 for landlocked tidelands would have far-reaching consequences, impacting thousands of properties that have been developed, or are planned to be developed, in reliance on their exemption from licensing under Chapter 91. In addition, a finding that conditions imposed by a previous administrative license can undercut a Legislative enactment would result in the inability of property owners and developers to rely on clear statutory language to determine their property rights and obligations. The amicus brief, therefore, seeks to resolve these concerns.  

The amicus brief was filed in support of the Superior Court’s holding that the 2007 Tidelands Act is a valid exercise of Legislative authority and that the statutory exemptions from Chapter 91 licensing trump prior license conditions that are now unnecessary. As the brief sets forth in more detail, the 2007 Tidelands Act was enacted as a proper exercise of the Legislature’s power and authority, and therefore it validly and effectively exempts landlocked tidelands from licensing under Chapter 91. More specifically, the Legislature made all the necessary findings to relinquish the public’s interests in landlocked tidelands under the 2007 Tidelands Act, by indicating the land involved, acknowledging the interests being surrendered, acting for a valid public purpose, and ensuring that any private benefits that that would be enjoyed as a result of the exemption of landlocked tidelands from licensing were incidental to that public purpose. However, as the brief explains, the Legislature did not fully relinquish the public’s rights in landlocked tidelands because the 2007 Tidelands Act simply exempts landlocked tidelands from the licensing requirements of Chapter 91. The 2007 Tidelands Act also provides for a public benefit review process, applicable to any new or modified use or structure on landlocked tidelands that requires MEPA review, which review process may result in the imposition of additional measures to preserve or enhance the public’s right to enjoy the tidelands protected under Chapter 91. Furthermore, the brief explains that the exemption from Chapter 91 licensing for landlocked tidelands under the 2007 Tidelands Act necessarily supplants any conditions imposed on those landlocked tidelands under prior, and now-unnecessary, Chapter 91 licenses. In conclusion, the brief requests that the Supreme Judicial Court uphold the decision of the Superior Court.  
Nutter was chosen as co-counsel on the brief based on its successful litigation of similar cases including Higgins v. Department of Environmental Protection and Hertz v. Golledge, both of which involved private party challenges to the Commonwealth’s exercise of authority for the protection of tidelands under Chapter 91 that were dismissed for lack of standing.

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