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14

- P

- 607 Appeals Court
NAVY Y ARD FOUR ASSOCIATES, LLC vs . DEPARTMENT OF ENVIRONMENTAL PROTECTION & another. 1

No. 14

- P

- 607. Suffolk. April 2, 2015.

- September 4 , 2015.
Present: K afker, C.J., Kantrowitz, & Hanlon, JJ.

Harbors
. Real Property , Harbors, Restrictions, Littoral property, License. Trust , Public trust. License
. Department of Environmental Protection
. Administrative Law , Agency's authority, Regulations, Agency's interpretation of statute, Agency's interpretation of regulation. Regulation
. Statute , Constructio n. Words , "Tidelands."

C ivil action commenced in the Superior Court Department on December 20, 2011. The case was heard by Peter M. Lauriat , J. , on motions for judgment on the pleadings and for partial summary judgment.

Donald R. Pinto, Jr
. , for the plaintiff. Seth Schofield , Assistant Attorney General, for Department of Environmental Protection
. John A. Pike , for Conservation Law Foundation, amicus curiae, submitted a brief.

1 Commonwealth. We acknowledge the am icus curiae brief filed by the Conservation Law Foundation.2

KAFKER , C. J . This appeal arises from a dispute over public accommodation requirements imposed within a waterways license issued by the Department of Environmental Protection (DEP) pursuant to G. L. c. 91 for property currently owned by the plaintiff, Navy Yard Four Associates, LLC ( NYF )
. The property is an approximately 2.6

- acre parcel of land in Charlestown abutti ng Boston Harbor. It is the site of a 224

- unit apartment building d evelopment known as Harborview. DEP concluded in 2004 that the project was a nonwater

- dependent use sited on filled
"C ommonw ealth [ t ] idelands " and therefore special conditions were includ ed as part of its waterways license to ensure that the project served a "proper public purpose." One of these special conditions was that seventy

- five percent of the ground floor of the buildi ng be reserved for f acilities of pub lic accommodation
. In 2009 , NYF sought to amend its license, part icularly the public accommodation requirements, contend ing that (1) G. L.

c. 91 limits "C ommonwealth tide lands " to submerged lands and excludes the tidal flats on which this project is sited , and (2)
"C ommonwealth tide lands " do not include property owned by the Boston Redevelopment Authority , which owned the property at the time of permitting , or other such political subdivisions or quasi public agencies of the C ommonwealth. DEP declined to grant the amendment, and NYF appealed DEP's decision to the Superior Court in accordance with G. L. c. 30A, § 14, naming3

both DEP and the Commonwealth as defendants. The Superior Court affirmed DEP's denial of NYF's req uested c. 91 license amendment and rejected NYF 's request for a declaratory judgment invalidat ing DEP's relevant regulations defining "Commonwealth [ t ] idelands ." Based on the property's history, the applicable statutory and regulatory framework, and the public trust doctrine, we reach the same conclusions and therefore affirm the Superior Court amended judgment before us
. 1. Background
. From 1800 to 197 9 , NYF's property was part of a larger parcel owned by the F ederal government , originally purchased to establish the Charlestown Navy Yard
. See St. 1800,

c. 26 (May session)
. To that end, the United States government lawfully filled and constructed piers and buildings on the subject tidelands. A fter the closure of the shipyard, th e Massachusetts Legislature , on July 22, 1978, passed a special
Act (the Navy Yard Act) to facilitate the transfer of Navy Yard land to , in part, the Boston Redevelopment Authority ( BRA )
. St. 1978, c. 556. T he Federal government deeded a portion of the l and , including what became NYF's property, to the BRA in May of 197 9
. Since that period , the BRA has redeveloped the

area for multiple uses under licenses issued pursuant to c. 91,4

including marinas, condominiums, off ices, and water transportation facilities. 2
In March , 2003, LDA Acq uisition, LLC (LDA) , submitted a waterways license application for the property to DEP pursuant
to G. L. c. 91 and its implementing regulations at 310 Code Mass. Regs. § § 9.0 1 et seq. (Waterways Regulations) . At that
t ime, the BRA still owned the property and LDA was its lessee
. LDA's license application sought approval to build the Harborview project , as described above. On February 18, 2004, DEP issued its written determination on LDA's license application, wherein it approved LDA's proposed Harborview project. It determined the property to fall on "Commonwealth [ t ] idelands" as "the site is owned by the [BRA], a public agency." It also determined that the project, as conditioned, complied with all applicable standa rds of the Waterways Regulations, including the special standards for no nwater

dependent use projects. In January , 2005, Navy Yard Four Associates Limited Partnership notified DEP that it had taken over the project. On May 2 6 , 2005, the BRA conveyed the property to Navy Yard Four Associates Limited Partnership
. Thus , the waterways license issued on June 11, 2005 , to Navy Yard Four Associates Limited

2 Currently, the United States Constitution, the oldest commissioned United States naval vessel, is docked at the former Charlestown Navy Yard
.5

Partnership rather than to LDA . In October , 2005, Navy Yard Four Associates Limited Partnership then conv eyed the property to NYF, the plaintiff, for nominal consideration. 3 In addition to approving NYF's plans to construct Harborview, the DEP license requires in pertinent part that "at least seventy

- five percent of the ground floor of the building be maintained as Facilities of Public Accommodation [ FPAs ] as defined at 310 [Code Mass. Regs. §] 9.02, including interior public pathways, public restrooms, and pathways within the footpr int of the building but open to the exterior." 4 This requirement stems from 310 Code Mass. Regs. § 9.5 3 (2000) , 5 which requires FPAs for all "nonwater

- dependent use project[s] that include[] fill or structures on Commonwealth tidelands." 6

3 The record demonstrates that NYF and Navy Yard Four Associates Limited Partnership are one and the same.

4 The Waterways R egulations define an FPA in part as "a facility at which goods or services are made available directly to the transient public on a regular basis, or at which advantages of use are otherwise open on essentially equal terms to the public at large (e.g., patrons of a public restaurant, visitors to an aquarium or museum), rather than restricted to a relatively limited group of specified individuals (e.g., members of a private club, owners of a condominium building)." 310 Code Mass. Regs. § 9.02 (2000)
.

5 Throughout this opinion, our citation to any section of the Waterways Regulations is to the applicable version in effect at the time of the relevant DEP determination (i.e., the original licensing or the proposed license amendment)
.

6 The amount of FPA space "shall be at least equal in amount to the square footage of all Commonwealth tidelands on the6

Between 2005 an d 2007, NYF constructed Harborview, and a s required by NYF's license , the ground floor of the Harborview building includes 32,225 square feet dedicated to FPAs. Beginning in 2006, NYF and its predecessors actively marketed the FPA space, but by late 2009 NYF had yet to find appropriate
tenants . In 2006, the Offi ce of Coastal Zone Management and DEP completed the " Massachusetts Chapter 91 Mapping Project, " which established the presumptive historic high and low water marks along the Massachusetts shore for purposes of DEP's jurisdiction
under c. 91. With the new information provided by the mapping
p roject, it became clear that the entire footprint of the building lies between the historic high water mark and the historic low water mark
. 7

project site within the footprint of buildings containing nonwater

- dependent facilities of private tenancy," 310 Code Mass. Regs. § 9.53(2)(c)1 (2000) , though space may also be provided for utility and access facilities that must be located on the ground floor in order to serve facilities of private tenancy located on other floors, provided that these " [u]pper [f]loor [ a ] ccessory [ s ] ervices" do not occupy more than twenty

five percent of the building footprint. 310 Code Mass. Regs. § 9.02 (1994)
.

7 "Historic High Water Mark means the high water mark which existed prior to human alteration of the shoreline by filling, dredging, excavating, impounding, or other means," while "Historic Low Water Mark means the low water mark which existed prior to huma n alteration of the shoreline by filling, dredging, excavating, impounding or other means." 310 Code Mass. Regs. § 9.02 (2000)
.7

In September , 2009, NYF submitted an application to DEP to amend its w aterways l icense , seeking (1) a reduction of the amount of floor area required to be used as FPAs from 32,225 square feet to 12,570 square feet, and (2) approval for flexibility in where to locate the FPAs on the ground floor of the building. NYF's application noted that Harborvie w rested on filled " tidal flats "

-- the area between the historic high and
low water marks

-- and argue d that though the property was initially classified as " Commonwealth [ t ] idelands " due to the BRA's ownership, its classification should change given that NYF is a private entity. Pursuant to its regulations, DEP reviewed NYF's application, held a public hearing, and considered the company's response to comments. On November 9, 2010, DEP issued a written determination denying the requested amendment. As stated in the determination's findings, this decision was based on the fact
that when the original license was granted , the property was on previously filled " Commonwealth [ t ] idelands, " and that "[o]nce held by the Commonwealth, the type of tidelands can't be changed back without a specific act of the [L] egislature." On November 24, 2010, NYF requested an adjudicatory hearing before DEP to challenge the denial of its license amendment application
. On cross motions for summary decision, the presiding officer issued a recommended final decision on8

November 21, 2011 , affirming DEP's written d etermination, which
the DEP Commissioner adopted in his final decision on November 22, 2011
. As a result, NYF filed a c omplaint in Superior Court seeking judicial review of DEP's final decision pursuant to
G. L. c. 30A, § 14, and a declaration that certain provisions of the Waterways Regulations are ultra vires
. 8 After holding a hearing on NYF's motions for judgment on the pleadings and for partial summary judgment, a judge denied the motions , affirm ing DEP's f inal d ecision and denying declaratory relief in a written
memorandum of decision and order
. NYF appeals from the resulting amended judgment. 2. Discussion
. A. Public trust doctrine
. NYF's claim implicates our public trust doctrine , and therefore, " [ t]o resolve this dispute we must consider in historical perspective the allocation of rights among privat e parties, the Commonwealth, and the public to use, own and enjoy one of the Commonwealth's most precious natural resources, its shore." Boston Waterfront Dev. Corp
. v. Commonwealth , 378 Mass. 629, 630 (1979) ( Boston Waterfront )
. See Arno v. Commonwealth , 457 Mass.

8 NYF also claimed that the Commonwealth had relinquished all of its rights, title, and interest to the property as a result o f the Navy Yard Act, and that the F ederal government had adversely possessed the property, thereby extinguishing any interests of the Commonwealth in the property. Later, NYF voluntarily dismissed these counts of its complaint
. Thus these issues are not before us.9

434, 449 (2010) ( " T hroughout history, the shores of the sea have been recognized as a special form of property of unusual value; and therefore subject to different legal rules from those which apply to inland property" ) , quoting from Boston Wat erfront , supra at 631
. Under common law, private ownership in coastal land could hi storically extend only landward of the mean high water mark.
Arno v. Commonwealth , supra . Seaward of the high water mark , ownership remained with "the Crown [and eventual ly the Massachusetts Bay Colony, followed by the Commonwealth , ] but subject to the rights of the public to use the coastal waters for fishing and navigation." Ibid ., quoting from Opinion of the Justices , 365 Mass. 681, 684 (1974). This changed, however, with the Colonial Ordinance of 1641

- 1647, which authorized the transfer of title to property between the high and low water marks

-- the tidal flats

-- to private parties, though th is title has always had "strings attached." Arno v. Commonwealth , 457 Mass. at 449, quoting from Boston Waterfront , 378 Mass. at 637. While " [ g ] reater public rights exist in submerged lands, the land lying seaward o f the low water mark," Arno v. Commonwealth , supra at 450, both tidal flats and submerged lands
are referred t o collectively as "tidelands," id . at 436, and

" [a] ll tidelands below [the historic] h igh water mark are subject to [the public trust doctrine]. " Trio Algarvio , Inc . v.10

Comm issioner of Dept. of Envtl. Prot ection , 440 Mass. 94, 97 (2003)
. General L aws c. 91 , the Waterways Act, represents the modern embodiment of the public trust doctrine , and "governs

. . . water

- and nonwater

- dependent development in tidelands and the public's right to use those lands." Moot v. Dep artment of Envtl. Prot ection , 448 Mass. 340, 342 (2007). As such, those parties seeking to put tidelands to either water

- or nonwater

dependent use

-- e.g., filling tidelan ds, constructing or extending whar ves , pier s , dam s , bridge s or other structure s -- must first obtain a license pursuant to c. 91. DEP administers this licensing program, as "[t]he Legislature has designated DEP as the agency charged with responsibility for protecting public trust rights in tidelands through the c. 91 licensing program ." Alliance to Protect Nantucket Sound, Inc . v. Energy Facilities Siting Bd
. , 457 Mass. 663, 678 (2010). See G. L. c. 91, § 2.
In 1983 , the Legislature made numerous material amend ments
to c. 91
. See St. 1983, c. 589, § 21. Foremost for our purposes, the Legislature add ed several definitions to its waterways statutory scheme that are controlling to this day. First, the L egislature defined " [ t ] idelands" as " present and former submerged lands and tidal flats lying below the mean high water mark ." G. L. c. 91, § 1. Next, the Legislature clarified the meanings of "Commonwealth tidelands" and " [ p ] rivate11

tidelands." " Commonwealth tidelands " are " tidelands held by the commonwealth in trust for the benefit of the public or held by another party by license or grant of the commonwealth subject to an express or implied condition subsequent that it be used for a public purpose," while " [ p ] rivate tidelands " are those "held by a private party subject to an easement of the public for the purposes of navigation and free fishing and fowling and of
pass ing freely over and through the water." Ibid
. Consistent with the Legislature's delegation of authority
to DEP to protect the public trust, see G. L. c. 91, §§ 2, 10, 18, the agency first promulgated the Waterways Regulations in 1990 to effectuate the Wa terways Act's purposes. 310 Code Mass. Regs. §§ 9.01 et seq . These regulations, which were submitted to the Legislature for review in accordance with the statute's 1983 amendments, see G. L. c. 91, § 18, expounded on the key definitions described by the statute. Although DEP's definitions of " [ t ] idelands" 9 and " [ p ] rivate [ t ] idelands" 10

9 "Tidelands" are "present and former submerged lands and tidal flats lying between the present or historic high water mark, whichever is farther landward, and the seaward limit of state jurisdiction. Tidelands include both flowed and filled t idelands, as defined in [ this section ] ." 310 Code Mass. Regs. § 9.02 (1994)
.

10 "Private [ t ] idelands" are defined as " tidelands held by a private person subject to an easement of the public for the purposes of navigation and free fishing and fowling and of passing fre e ly over and through the water ." 310 Code Mass. Regs. § 9.02 (2000)
.12

largely track the language of the statute, DEP further expressly defined "Commonwealth [ t ] idelands" to mean "tidelands held by the Commonwealth, or by its political subdivisions or a quasi

public agency or authority , in trust for the benefit of the public; or tidelands held by a private person by license or grant of the Commonwealth subject to an express or implied condition subsequent that it be used for a public pur pose" (emphasis supplied). 310 Code Mass. Regs. § 9.02 (1994).
B. DEP regulations
. On appeal, NYF challenges DEP's
W aterways R egulations , arguing that the agency's definition of
"Commonwealth [ t ] idelands" exceeds its regulatory authority and violates t he public trust doctrine. NYF challenges DEP's interpretation of both parts of the statutory definition : (1)
wh ich tidelands may be attributed to "the Commonwealth , " and (2) which agencies or political subdivisions constitute "the Commonwealth." NYF ass erts that only present or former submerged lands may be classified as "Commonwealth [ t ] idelands" and therefore subject ed by DEP to the FPA requirements , and that including political subdivisions or quasi public agencies such
as the BRA under the umbrella o f "the Commonwealth" is inconsistent with the language of c. 91
. When considering the validity of law fu l ly promulgated regulations, we utilize a two

- part test. " Using conventional tools of statutory int erpretation, we first consider ' whether13

the Legislature has spoken with certainty on the topic in question, and if we conclude that the statute is unambiguous, we give effect to the Legislature' s intent. ' " Biogen IDEC MA, Inc .

v. Treasurer & Receiver Gen
. , 454 Mass. 174, 186 (2009) ( cit ation omitte d). However, " if the Legislature has not directly addressed the issue and the statute is capable of more than one rational interpretation, we proceed to determine
whether t he agency's interpretation may ' be reconciled with the governing legislation.'
. . . The ultimate question is whether the policy embodied by the agency's interpretation is
reasonable. " Id . at 187, quoting from Goldberg v. Board of Health of Granby , 444 Mass. 627, 633 (2005) . See G. L. c. 30A, § 14(7)( a )

- ( d ). Although an agency may on ly exercise "the powers and duties expressly conferred upon it by statute and such as are reasonably nec essary to carry out its mission, " Commonwealth v. Maker , 459 Mass. 46, 50 (2011) ( cit ation omitted), a plaintiff " challenging the validity of an agency' s regulations has a formidable burden." Biogen IDEC MA, Inc . v. Treasurer & Receiver Gen
. , 454 Mass. at 187. After reviewing the challenge to DEP's regulatory definition s , we conclude that NYF has not satisfied this burden. i. Commonwealth tidelands may include t idal flats
. Alt hough c. 91, § 1 , expressly defines " [ t ] idelands" as " present and former submerged lands and tidal flats lying below the mean14

high water mark ," NYF maintains that the statutory phrase "Commonwealth tidelands" only in cludes present and former submerged lands , not tidal flats
. Of course , " t he language of the statute is the principal source of insight into the legislative intent," Acme Laundry Co
.

v. Sec retary of Envtl. Affairs , 410 Mass. 760, 770 (1991), and "[t]he Legislature must be presumed to have meant what the words plainly say." Condon v. Haitsma , 325 Mass. 371, 373 (1950). Here, the text of the Waterways Act clearly states that tidelands are " present and former submer ged lands and tidal flats lying below the mean high water mark. " G. L. c. 91, § 1. The very next definitions listed are those for "Commonwealth tidelands " and " [ p ] rivate tidelands " (emphas e s supplied ), which suggests that both of these definitions incorp orate the earlier definition of "tidelands," and therefore apply to both submerged lands and tidal flats. See Commonwealth v. Hilaire , 437 Mass. 809, 816 (2002) ("When the Legislature uses the same term in the same section, or even in different statutory sections, the term should be given a consistent meaning throughout"); Commonwealth

v. Raposo , 453 Mass. 739, 746 (2009)
. The purpose behind c. 91 also supports DEP's interpretation. " General Laws c. 91 sets out to 'preserve and protect,' under [DEP's] wa tch, the public's rights in tidelands." Moot v. Dep artment of Envtl. Prot ection , 448 Mas s .15

at 347. As explained previously , c. 91 represents the modern iteration of the public trust doctrine. This public trust has always applied to both submerged lands and tidal flats , as both types of shore land were recognized as special forms of property with unusual value
. See Trio Algarvio , Inc . v. Commissioner of Dept. of Envtl. Protection , 440 Mas s. at 97; Arno v. Commonwealth , 457 Mass. at 449. Although a disti nction between submerged lands and tidal flats is recognized under the doctrine, with submerged lands entitled to more public protection, id . at 450, tidal flats are still of significant public concern and are not "private " in the traditional sense,
as NYF appears to contend. Rather , a categorical exclusion of all tidal flats from the statutory definition of "C ommonwealth tidelands, " regardle ss of ownership, undermines the public rights and interest in this special form of property
. In light of the s tatu tory language and purpose, DEP's interpretation of "C ommonwealth [ t ] idelands " to include both submerged lands and tidal flats is reasonable and entitled to deference. See Biogen IDEC MA, Inc . v. Treasurer & Receiver
Gen . , 454 Mass. at 187 ; Goldberg v. Board of Health of Granby , 444 Mass. at 633. ii. Definition of "Commonwealt h
. " NYF next challenges DEP's regulatory definition of "Commonwealth" in the phrase "Commonwealth [t]idelands," which expressly includes the16

Commonwealth's political subdivision s and quasi public agencies or authorities. 310 Code Mass. Regs. § 9.02. NYF correctly contrasts the regulation with c. 91, which contains no such express reference to political subdivisions or quasi public agencies or authorities within either its defin ition of
"Commonwealth tidelands " or " [ p ] rivate tidelands. " 11 The
statute , however, specifies only two categories of tidelands:

" Commonwealth tidelands " and " [ p ] rivate t idelands, " thereby requiring a choice to be made between the two when classifying the property of political subdivisions and quasi public agencies or authorities
. " Private tidelands " are defined by statute as "tidela nds held by a private party
. . . . " The ordinary meaning of " private " is " [ r ] elating or belonging to an individual, as opposed to the public or the government." Black's Law D ictionary 1315 ( 9 th ed. 2009 ). Contrast Lafayette Place Assocs
. v. Boston Redev. Auth y . , 427 Mass. 509, 532 (1998)

11 While G. L. c. 91, § 38 , as appearing in St. 2010, c. 309, § 2, goes on to include both " the c ommonwealth " and "its political subdivisions " in the definition of " [ c ] laimant" as used in §§ 38 to 48 of the statute (concerning abandoned vessels), this does little to fill the gap left in the definitions of "Commonwealth tidelands " and " [ p ] rivate tidelands " in § 1. Merely applying the principle that when "specific languag e appears in one section of a statute and is absent from a related section, the absent language should not be read into the provision from which it is missing," Tilcon Mass., Inc . v. Commissioner of Rev
. , 30 Mass. App. Ct. 264, 269 (1991), as NYF urges us to do, fails to provide a workable solution as it would prevent the contested category from meeting either the "Commonwealth" or " [ p ] rivate" tideland definitions.17

( "The BRA is certainly a public body, a governmental entity of

some sor t performing public functions " ). Interpreting "private party" under the statute to include a political subdivision or quasi public agen c y runs counter to the plain meaning of

" private ." See Telesetsky v. Wight , 395 Mass. 86 8, 872 (1985) (statute "must be afforded its plain meaning"). The plain meaning of "Commonwealth" in this context is less obvious. W hether the reference in c. 91 to " C ommonwealth tidelands " is meant to include tidelands held by "political subdivisions or a quasi

- public agency or authority" is not without ambiguity. We recognize that "[s]tatutory silence, like statutory ambiguity, often requires that an agency give clarity to an issue necessari ly implicated by the statute but either not addressed by the Legislature or delegated to the superior expertise of agency administrators." Goldberg v. B oard of Health of Granby , 444 Mass. at 634. See Middleborough v. Housing Appeals Comm
. , 449 Mass. 514, 523 (2007 )
. "The ultimate question is whether the policy embodied by the agency's interpretation is reasonable." Biogen IDEC MA, Inc . v. Treasurer & Receiver Gen
. , 454 Mass. at 187. We conclude that DEP's interpretation that tidelands held by quasi pub lic agencies and political subdivisions of the Commonwealth fall within the statutory term "Commonwealth tidelands " is reasonable and entitled to deference given the need to choose between only18

two categories of tideland s (private and C ommonwealth) , the
pu blic rathe r than private nature of political subdivisions and quasi public authorities , and t he ambiguity of the statutory
term "C ommonwealth, " which in general understanding may or may not include such political subdiv isions and quasi public agencies
. Se e i bid
. DEP's interpretation is also buttressed by the process pr e scribed for DEP's rulemaking authority , which reserves oversight of pro mulgated regulations for the Legislature
. G. L.

c. 90, § 18. " T hat the Legislature did not act to challenge the [agency's] regulations lends weight to the conclusion that the [agency] acted within its delegated authority in promulgating
them. " MRI Assocs., Inc . v. Dep artment of Pub
. Health , 70 Mass. App. Ct. 337, 342 n.8 (2007). Compare Wilson v. Comm issioner of
T ransitional Assistance , 441 Mass. 846, 853

- 8 54 (2004)
. C. DEP's decision not to grant the amendment
. Alt hough we have rejected NYF's challenge to the validity of the regulations, we must still address DEP's particular application of the statute and regulations to NYF's proposed license
amendment
. Generally, " the application of a regulation to the particular facts of a case is within an agency's discretion and we accord an agency's interpretation of its own re gulations substantial deference. " Biogen IDEC MA, Inc . v. Treasurer & Receiver Gen
. , 454 Mass. at 184. T he court will only overturn19

the agency's action " if it was arbitrary, unreasonable or inconsistent with the plain terms of the regulation itself ." Ibid
. In our review, we exercise considerable restraint, as "[t] he court should be slow to decide that a public board has acted unreasonably or arbitrarily and should search for some ground which reasonable [people] would regard as a proper basis for the agency's action. " Fiora vanti v. State Racing Com mn . , 6 Mass. App. Ct. 299, 302 (1978)
. W e conclude that DEP's application of its regulation s and denial of NYF's proposed license amendment was not a rbitrary or capricious, an abuse of discretion, or other wise not in accordance with law
. G. L.

c. 30A, § 14(7)( g ). During the time the BRA owned the property, from 197 9 until 2005, the property's tidelands qualified as "Commonwealth tidelands" due simply to the BRA's ownership
. As a quasi public authority of a political subdivisio n of the C ommonwealth , it falls under the umbrella of "Commonwealth" for the purpose of waterways licensing. 12 This is reflected in DEP's February ,

12 "The BRA is both a 'redevelopment authority' under G. L. c. 121B, § 4, and an 'urban renew al agency' under G. L. c. 121B, § 9. Additionally, it serves as the planning board for the city of Boston and monitors private development under G. L. c. 121A." Mahajan v. Dep artment of Envtl. Prot
. , 464 Mass. 604, 606 (2013) (footnote omitted) . Of its many enumerated powers, " [ p ] erhaps the most significant power granted to the BRA is the power of eminent domain." Ibid
. See Lafayette Place Assocs
. v. Boston Redev. Auth y . , 427 Mass. at 533 (classifying BRA as a public employer)
.20

2004 , written determination regarding the property in reference to the original license

-- "[t]he tidelands are categorized as Commonwealth Tidelands because the site is owned by the Boston Redevelopment Authority, a public agency"

-- and as noted by both parties, the Harborview project was designed with this categorization in mind. 13 The conveyance of the prope rty from the BRA to NYF's predecessor in interest and then to NYF , both private entit ies , did not change the classification of the tidel ands as "Commonwealth [ t ] idelands " for two reasons. First, o nce the property was conveyed to NYF , the waterways license was automatically transferred to NYF pursuant to 310 Code Mass. Regs. § 9.23 , which transferred all obligations and responsibilities under the license to the new owner, including the FPA requirements
. 14 While DEP has the authority t o renew and

13 As the original determination observes, "The entire site lies on filled Commonwealth Tidelands and the project has been planned to comply with the appropriate dimensional and use limitations of the applicable Waterways Regulations."

14 Under 310 Code Mass . Regs. § 9.23(1) (1996), "Unless otherwise provided in the license, a valid license shall run with the land and shall automatically be transferred upon a change of ownership of the affected property within the chain of title of which the license has been recorded. All rights, privileges, obligations, and responsibilities specified in the license shall be transferred to the new landowner upon recording of the changed ownership."21

amend licenses, 310 Code Mass. Regs. §§ 9. 2 4, 9.2 5 (1996) , DEP is not at liberty to transform the nature of the property from "Commonwealth" to "private" tidelands or extinguish the public's rights in the property. "[O]nly an act of or an expr ess delegation by the Legislature could extinguish the public's rights in the parcel." Arno v. Commonwealth , 457 Mass. at 448
. 15 The Legislature has taken no such action for the property in question. Secondly, w hen NYF gained title to the property, it di d so

" subject to an express or impli ed condition subsequent that it be used for a public purpose ." 310 Code Mass. Regs. § 9.02 (1996) (definition of "Commonwealth [t]idelands")
. This contention is supported by the deed from the BRA to NYF's predecessor in interest. The deed incorporates a " Land Disposition Agreement " ( a greement) that explicitly includes the FPA requirements now contested by NYF among other conditions

Additionally, although it was LDA , the BRA's tenant, that originally applie d for the license, under the regulations "[a]pplicant means any person submitting a license or permit application or other request for action by the [DEP] pursuant to 310 [Code Mass. Regs. §] 9.00, and shall include the heirs, assignees, and successors in interest to such person" (emphasis supplied). 310 Code Mass. Regs. § 9.02 ( 1996 ). Thus, Navy Yard Four Limited Partnership (NYF's predecessor) occupied LDA's shoes with respect to the license application.

15 This requirement applies to both tidal flats and submerged lands. Arno v. Commonwealth , 457 Mass. at 452 ("The process of divesting the public of its rights in tidal flats also requires an act of the Legislature").22

stemming from the classification of the property as lying on "Commonwealth [ t ] idelands." Furthermore, the deed establishes an explicit condition subsequent and right of reentry on behalf of the BRA if NYF fails to comply with the conditions contained in the a greement. While the BRA eventually came to support
N YF's amendment application, and NYF argues that it and the BRA may amend this a greement at any time, the BRA, like DEP, "[can] not extinguish forever claims that [it] was not free to settle in the first place." Arno v. Commonwealth , 457 Mass. at 453.
Last ly, NYF argues that the classification of its property as lying on " Commonwealth [ t ] idelands " contradicts the presumptions embedded in DEP's definition s of both " Commonwealth [ t ] idelands " and "[ p ] rivate tidelands. " 16 The presumptions in

16 The Waterways Regulations state that i n applying th e definition of "Commonwealth [t]idelands , " DEP "shall act in accordance with the following provisions: (a) [DEP] shall presume that tidelands are Commonwealth tidelands if they lie seaward of the historic low water mark or of a line runn ing 100 rods (1650 feet) seaward of the historic high water mark, whichever is farther landward; such presumption may be overcome only if [DEP] issues a written determination based upon a final judicial decree concerning the tidelands in question or other conclusive legal documentation establishing that, notwithstanding the Boston Waterfront decision of the Supreme Judicial Court, such tidelands are unconditionally free of any proprietary interest in the Commonwealth; (b) [DEP] shall presume that tidelands are not Commonwealth tidelands if they lie landward of the historic low water mark or of a line running 100 rods (1650 feet) seaward of23

question essentiall y hold that if tidelands fall landward of the historic low water mark, as with the Harborview project , DEP will presume the tidelands in question are private t idelands and not Commonwealth tidelands. This presumption may be overcome , however, by a "showing that such tidelands .
. . are not held by a private person." (See note 16 , supra .) NYF argues that DEP has not made this showing, as NYF is a private entity. Of

course , at the time of the licensing determination , the property was held by the BRA, a public entity , and the license, including its obligations , w as transferred to NYF as described above. DEP's application of the regulations likewise recognizes the express language of the statute

-- that private entities may

the historic high water mark, whichever if [ sic ] farther landward; such presumption may be overcome only upon a showing that such tidelands, including but not limited to those in certain portions of the Town of Provincetown, are not held by a private person." 310 Code Mass. Regs. § 9.02 (1994)
. The regulatory definition of "[p]rivate [t]idelands" specifies that DEP "sha ll presume that tidelands are private tidelands if they lie landward of the historic low water mark or of a line running 100 rods (1650 feet) seaward of the historic high water mark, whichever is farther landward; such presumption may be overcome upon a sh owing that such tidelands, including but not limited to those in certain portions of the Town of Provincetown, are not held by a private person or upon a final judicial decree that such tidelands are not subject to said easement of the public [ for navigati on , fishing , fowling , and passing freely over and through the water ]." 310 Code Mass. Regs. § 9.02 (2000).24

hold "Commonwealth t idelands" subject to an implied or explicit condition subsequent that the property be used to further a public purpose
. G. L. c. 91, § 1. Such express statutory language and categorization overrules the ordinary regulatory presumptions as well. In sum, DEP's application of the statutory and regulatory requirements was a reasonable and proper basis for the denial of NYF's requested license
amendment. See Teamsters Joint Council No. 10 v. Director of Dept. of Labor and Workforce Dev . , 447 Mass. 100, 106 (2006) (reasonably proper agency decision is not arbitrary or capricious). 3. Conclusion . For the above stated reasons, we affirm the amended judgment in favor of DEP. So ordered
.