Hertz et al. v. Secretary of EOEEA: No Standing to Challenge Boston Harbor Plan Amendment

Beveridge & Diamond, P.C. - Massachusetts Environmental, Land Use & Real Estate Alert, 2009

On February 27, 2009, the Appeals Court dismissed an appeal by private property owners challenging the approval by the Secretary of the Executive Office of Energy and Environmental Affairs (“Secretary”) of an amendment to the Boston Harbor Plan.  Hertz v. Secretary of the Executive Office of Energy and Environmental Affairs, 73 Mass. App. Ct. 770 (2009).  The court held that the plaintiffs lacked standing to challenge the approval on the basis of protecting clean air and water, aesthetic interests and harm to their private property resulting from development in accordance with the amended plan.  The court further held that granting standing would subject almost all municipal harbor projects to litigation and confer rights beyond those envisioned by the harbor plan regulations.

The plaintiffs are unit owners or residents of  Strada 234 Condominium on Causeway Street in Boston.  The 2006 amendment to the Harbor Plan would allow the development of Lovejoy Wharf (which abuts the plaintiffs’ property) and two buildings.  The plaintiffs claim that the allowed development would block the light, air and visual benefits of their property, reduce their access to the waterfront, as well as create traffic, noise and pollution problems for their property. 

The Appeals Court held that the plaintiffs did not have a right of action based upon those claims.  To the extent the plaintiffs made claims relative to blocking private views, traffic and parking problems, and their special status as abutters, the court held that the claims must fail because the harbor plan regulations do not provide any protection for these claims.  With regard to the plaintiffs’ other claims of diminished use of and access to the waterfront and increased noise and pollution, the court held that the harbor plan regulations do not create a private right of action in the plaintiffs to redress those injuries.  Hertz at 774.

In its decision, the court stated, the harbor plan regulations provide only for “public hearing, public comments and a reconsideration process.”  Id. at 775.  Although the regulations allow the plaintiffs to play a role in the process, they are not entitled to challenge the Secretary’s decision.  The court found that granting standing to the plaintiffs would subject almost all municipal harbor projects to litigation and confer rights upon the plaintiffs beyond those provided for in the harbor plan regulations.  Id. at 776. 

For more information, please contact Deborah Eliason at deliason@bdlaw.com.