Commercial Wharf E. Condo. Ass'n v. Bos. Boat Basin, LLC

93 Mass.App.Ct. 523

106 N.E.3d 1114

COMMERCIAL WHARF EAST CONDOMINIUM ASSOCIATION

v.BOSTON BOAT BASIN, LLC, & others.¹

No. 17–P–355

Appeals Court of Massachusetts, Suffolk..

Argued November 13, 2017

Decided July 10, 2018

Patrick P. Dinardo, Boston, for Boston Boat Basin, LLC, & another.

John M. Allen (William A. Zucker also present), Boston, for the plaintiff.

Present: Kinder, Desmond, & Sacks, JJ.

SACKS, J.

The defendants Boston Boat Basin, LLC, owner of an inn and marina on Boston harbor, and its manager (together, Boston Boat), appeal from a Land Court judgment ordering Boston Boat to comply with certain property use restrictions—agreed to by one of Boston Boat's predecessors in title—that benefit an abutter, plaintiff Commercial Wharf East Condominium Association (CWECA). On appeal, Boston Boat presses its attempt to cast off these restrictions on the ground that they impermissibly "limit the use of [its] marina and inn almost exclusively to private clients" and "restrict the public's ability to enjoy Boston Harbor." Boston Boat claims that the restrictions thus violate the public trust doctrine, which, in general terms, protects public rights in "tidelands," i.e., "present and former submerged lands and tidal flats lying below the mean high water mark," G. L. c. 91, § 1, as amended by St. 1983, c. 589, § 21, unless those right are properly relinquished.² See Arno v. Commonwealth, 457 Mass. 434, 436, 455–456, 931 N.E.2d 1 (2010). Boston Boat also appeals from the judge's finding that it was in contempt of a preliminary injunction earlier obtained by CWECA to enforce the restrictions against a predecessor in title.

We affirm the judgment requiring compliance with the restrictions as the judge interpreted them. We conclude, however, that the preliminary injunction did not apply to Boston Boat. Therefore, the contempt finding cannot stand.

Background. We draw our description of the case largely from the judge's detailed decision. Except as to the contempt claim, the pertinent facts are undisputed.

1. Prior proceedings. Boston Boat owns and operates an inn and marina (the locus), known as Boston Yacht Haven, at the seaward end of Commercial Wharf on Boston harbor, on or over Commonwealth tidelands. See note 2, supra. Boston Boat holds a license under G. L. c. 91, the Waterways Act administered by the Department of Environmental Protection (the department), to use the locus. The sole land access is by easement over the property of CWECA, an association of owners of certain condominiums located at the landward end of the wharf.

In 2006, CWECA filed this suit against the locus's prior owner of record and its affiliates (the prior owners³ ) to enforce certain restrictions on the use of the locus. CWECA obtained a preliminary injunction requiring the prior owners to comply with those restrictions as the judge interpreted them.⁴ In 2009, CWECA obtained a partial summary judgment ruling that rejected the prior owners' claim that the restrictions violated the public trust doctrine, and reiterated the proper interpretation of the restrictions, leaving the issue of damages for trial. Also in 2009, the prior owner of record filed for bankruptcy, and the mortgagee bank foreclosed. The purchaser at the foreclosure auction sold the locus to Boston Boat in 2010.

After some inconclusive procedural skirmishing over whether Boston Boat should be made a defendant in this action, CWECA filed in July of 2011 a contempt complaint asserting that Boston Boat was using the locus in violation of the 2006 preliminary injunction. That injunction remained in effect but had not been made permanent. CWECA subsequently amended its underlying complaint to add Boston Boat as a party and to seek declaratory and injunctive relief against Boston Boat regarding the validity and interpretation of the restrictions. In December of 2011, the judge held a trial on both the underlying and contempt complaints. Only CWECA and Boston Boat (and not the prior owners) participated in the trial.

In December of 2016, the judge issued a decision⁵ (1) rejecting Boston Boat's claim that the restrictions interfered with public trust rights and (2) finding Boston Boat in contempt of the 2006 preliminary injunction. The resulting judgment required Boston Boat to comply with the restrictions, as the judge interpreted them, and which we now describe.

2. The restrictions. The restrictions on Boston Boat's use of the locus stem from three sources: conditions on an access easement;⁶ a zoning variance and permit limiting the number of parking spaces at the locus;⁷ and, most significantly, a 2003 settlement agreement between CWECA and one of Boston Boat's predecessors in title, the developer of the locus (the 2003 agreement).⁸ The 2003 agreement, which resolved a suit by CWECA against the developer, encumbered and ran with the locus for the benefit of CWECA and was duly recorded. As summarized and interpreted by the judge, the agreement included restrictions that:

"(1) regulate deliveries and parking at the [i]nn [and] [m]arina, (2) prohibit its use by ferries, party, cruise, charter, or excursion boats, boats that sell alcoholic beverages, and boats that permit or provide gambling or gaming activities except for private, social games with no more than six participants, (3) prohibit its use as a ‘function hall,’ and (4) prohibit its use for ‘social events, such as, but not limited to, weddings, bar mitzvahs, school dances or holiday parties,’ except for up to four ‘special events’ per year, open only to ‘privately invited guests or narrowly targeted audiences,’ for which [CWECA] must be given at least thirty-days prior notice."

These are the restrictions that Boston Boat sought to void as inconsistent with the public trust doctrine.

3. The c. 91 license. In 1997, the department issued to the developer a thirty-year c. 91 license for the locus. Boston Boat succeeded to that license in 2010.⁹ The license authorized construction and maintenance of a pier, marina service building, and float system, with such structures to "be limited to the following uses: to provide a public recreational boating facility; public access to navigable waters; and accessory uses to the marina including a restaurant primarily serving marina patrons, a marine chandlery, office, crew quarters, vehicular circulation and parking." Notably, the license contained a "special condition" that provided in pertinent part:

"In partial compensation for the private use of structures on Commonwealth tidelands, which interferes with the rights of the public to use such lands, the [l]icensee shall allow the public to pass on foot, for any purpose and for 24 hours per day, on the proposed pier .... To the extent that the [l]icensee has the right to allow the public to pass across Commercial Wharf to its proposed pier pursuant to the [easement], the [l]icensee shall allow the public such a right of passage.... In no event shall the [d]epartment require the [l]icensee to provide access across Commercial Wharf if the licensee does not have the legal right to provide such access."

The license also included numerous "standard" conditions, many of them also imposed by c. 91 itself, including provisions (1) confirming the department's authority to control changes in the use of the licensed locus;¹⁰ (2) describing generally the nature of the public rights protected;¹¹ and (3) disclaiming any intent to infringe on the rights of property owners other than the licensee.¹²

Discussion. 1. Authority to enforce public trust rights. We now come to Boston Boat's claim that the restrictions agreed to by its predecessors in title unduly restrict public access to and use of its waterfront locus, and therefore violate the public trust doctrine and are void. The judge, seeing no such impact on public rights, rejected this claim. We likewise reject it, but on a different ground: Boston Boat had no authority in the first place to seek judicial enforcement of public trust rights in this private litigation.¹³

"Only the Commonwealth, ‘or an entity to which the Legislature has delegated authority expressly, may act to further public trust rights.’ " Moot v. Department of Envtl. Protection, 448 Mass. 340, 347, 861 N.E.2d 410 (2007) ( Moot I ), S.C., 456 Mass. 309, 923 N.E.2d 81 (2010) ( Moot II ), quoting from Fafard v. Conservation Commn. of Barnstable, 432 Mass. 194, 197, 733 N.E.2d 66 (2000). Accord Arno, 457 Mass. at 451, 931 N.E.2d 1. The primary entity to which the Legislature has delegated this authority is the department, as administrator of c. 91, which "generally is viewed as an encapsulation of the Commonwealth's public trust authority and obligations."¹⁴ Arno, 457 Mass. at 454, 931 N.E.2d 1, quoting from Fafard, 432 Mass. at 200 n.11, 733 N.E.2d 66. "[T]he Legislature has designated [the department] as the agency charged with responsibility for protecting public trust rights in tidelands through the c. 91 licensing program." Navy Yard Four Assocs., LLC v. Department of Envtl. Protection, 88 Mass. App. Ct. 213, 218, 37 N.E.3d 46 (2015), quoting from Alliance to Protect Nantucket Sound, Inc. v. Energy Facilities Siting Bd., 457 Mass. 663, 678, 932 N.E.2d 787 (2010). In administering c. 91, the department must "ensur[e] that the tidelands are utilized only for water-dependent uses or otherwise serve a proper public purpose." G. L. c. 91, § 2, as amended by St. 1983, c. 589, § 22.

The court has enforced the express delegation principle strictly. Thus, in Fafard, where there was no statutory delegation to a town or its conservation commission of authority to enforce public trust rights, the commission could not prohibit landowners from building a pier on the basis that the commission viewed the pier as conflicting with such rights. Fafard, 432 Mass. at 195–196, 197–198, 199 & n.10, 733 N.E.2d 66.

Similarly, in Moot I, the court held that the department itself, despite its broad c. 91 responsibilities, could not issue a regulation exempting landlocked...