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14-P-607 Appeals Court

NAVY YARD FOUR ASSOCIATES, LLC vs. DEPARTMENT OF ENVIRONMENTAL 

PROTECTION & another.1

No. 14-P-607.

Suffolk. April 2, 2015. - September 4, 2015.

Present: Kafker, 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, Construction. Words, 

"Tidelands."

Civil 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 amicus 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

abutting Boston Harbor. It is the site of a 224-unit apartment 

building development known as Harborview. DEP concluded in 2004 

that the project was a nonwater-dependent use sited on filled 

"Commonwealth [t]idelands" and therefore special conditions were

included 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 building be reserved for facilities of public accommodation.

In 2009, NYF sought to amend its license, particularly the 

public accommodation requirements, contending that (1) G. L. 

c. 91 limits "Commonwealth tidelands" to submerged lands and 

excludes the tidal flats on which this project is sited, and (2) 

"Commonwealth tidelands" 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 Commonwealth. DEP declined to 

grant the amendment, and NYF appealed DEP's decision to the 

Superior Court in accordance with G. L. c. 30A, § 14, naming 
3

both DEP and the Commonwealth as defendants. The Superior Court 

affirmed DEP's denial of NYF's requested c. 91 license amendment 

and rejected NYF's request for a declaratory judgment 

invalidating 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 1979, NYF's property was part 

of a larger parcel owned by the Federal 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. After the closure of the shipyard, the 

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. The Federal government deeded a portion of 

the land, including what became NYF's property, to the BRA in

May of 1979. Since that period, the BRA has redeveloped the 

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

including marinas, condominiums, offices, and water 

transportation facilities.2

In March, 2003, LDA Acquisition, 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. §§ 9.01 et seq. (Waterways Regulations). At that 

time, 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 standards of the Waterways 

Regulations, including the special standards for nonwaterdependent use projects.

In January, 2005, Navy Yard Four Associates Limited 

Partnership notified DEP that it had taken over the project. On 

May 26, 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 conveyed 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 

footprint of the building but open to the exterior."4 This 

requirement stems from 310 Code Mass. Regs. § 9.53 (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 Regulations 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 the 
6

Between 2005 and 2007, NYF constructed Harborview, and as 

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 Office 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 

project, 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 twentyfive 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 human 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 waterways license, 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 Harborview rested on 

filled "tidal flats" -- the area between the historic high and 

low water marks -- and argued 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 on 
8

November 21, 2011, affirming DEP's written determination, which 

the DEP Commissioner adopted in his final decision on November 

22, 2011.

As a result, NYF filed a complaint 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, affirming

DEP's final decision 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 private 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 of the Navy Yard Act, and that the Federal 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) ("Throughout 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 Waterfront, 

supra at 631.

Under common law, private ownership in coastal land could 

historically 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 eventually 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 this 

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 of the low water mark," Arno v. 

Commonwealth, supra at 450, both tidal flats and submerged lands 

are referred to collectively as "tidelands," id. at 436, and 

"[a]ll tidelands below [the historic] high water mark are 

subject to [the public trust doctrine]." Trio Algarvio, Inc. v. 
10

Commissioner of Dept. of Envtl. Protection, 440 Mass. 94, 97

(2003).

General Laws 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. Department of 

Envtl. Protection, 448 Mass. 340, 342 (2007). As such, those 

parties seeking to put tidelands to either water- or nonwaterdependent use -- e.g., filling tidelands, constructing or 

extending wharves, piers, dams, bridges or other structures --

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 amendments 

to c. 91. See St. 1983, c. 589, § 21. Foremost for our 

purposes, the Legislature added several definitions to its 

waterways statutory scheme that are controlling to this day. 

First, the Legislature 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]rivate 
11

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 

passing 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 Waterways 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 

tidelands, 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 freely 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 quasipublic 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 purpose" 

(emphasis supplied). 310 Code Mass. Regs. § 9.02 (1994).

B. DEP regulations. On appeal, NYF challenges DEP's 

Waterways Regulations, arguing that the agency's definition of 

"Commonwealth [t]idelands" exceeds its regulatory authority and 

violates the public trust doctrine. NYF challenges DEP's 

interpretation of both parts of the statutory definition: (1) 

which tidelands may be attributed to "the Commonwealth," and (2) 

which agencies or political subdivisions constitute "the 

Commonwealth." NYF asserts that only present or former 

submerged lands may be classified as "Commonwealth [t]idelands" 

and therefore subjected by DEP to the FPA requirements, and that 

including political subdivisions or quasi public agencies such 

as the BRA under the umbrella of "the Commonwealth" is 

inconsistent with the language of c. 91.

When considering the validity of lawfully promulgated 

regulations, we utilize a two-part test. "Using conventional 

tools of statutory interpretation, we first consider 'whether 
13

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)

(citation omitted). 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 the 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 only exercise "the 

powers and duties expressly conferred upon it by statute and 

such as are reasonably necessary to carry out its mission," 

Commonwealth v. Maker, 459 Mass. 46, 50 (2011) (citation 

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 definitions, we conclude that 

NYF has not satisfied this burden.

i. Commonwealth tidelands may include tidal flats.

Although c. 91, § 1, expressly defines "[t]idelands" as "present 

and former submerged lands and tidal flats lying below the mean 
14

high water mark," NYF maintains that the statutory phrase 

"Commonwealth tidelands" only includes present and former 

submerged lands, not tidal flats.

Of course, "the language of the statute is the principal 

source of insight into the legislative intent," Acme Laundry Co.

v. Secretary 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 submerged 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" (emphases supplied), which 

suggests that both of these definitions incorporate 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] watch, the public's rights in 

tidelands." Moot v. Department of Envtl. Protection, 448 Mass. 
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 Mass. at 97; Arno v. 

Commonwealth, 457 Mass. at 449. Although a distinction 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 "Commonwealth 

tidelands," regardless of ownership, undermines the public 

rights and interest in this special form of property. 

In light of the statutory language and purpose, DEP's 

interpretation of "Commonwealth [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 "Commonwealth." NYF next challenges 

DEP's regulatory definition of "Commonwealth" in the phrase 

"Commonwealth [t]idelands," which expressly includes the 
16

Commonwealth's political subdivisions 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 definition of 

"Commonwealth tidelands" or "[p]rivate tidelands."

11 The 

statute, however, specifies only two categories of tidelands: 

"Commonwealth tidelands" and "[p]rivate tidelands," 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 

"tidelands 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 Dictionary 1315 (9th ed. 2009). Contrast Lafayette 

Place Assocs. v. Boston Redev. Authy., 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 commonwealth" 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 language 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 sort performing public functions"). Interpreting "private 

party" under the statute to include a political subdivision or 

quasi public agency runs counter to the plain meaning of 

"private." See Telesetsky v. Wight, 395 Mass. 868, 872 (1985)

(statute "must be afforded its plain meaning").

The plain meaning of "Commonwealth" in this context is less 

obvious. Whether the reference in c. 91 to "Commonwealth

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 necessarily implicated by the statute but either not 

addressed by the Legislature or delegated to the superior 

expertise of agency administrators." Goldberg v. Board 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 public 

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 only 
18

two categories of tidelands (private and Commonwealth), the 

public rather than private nature of political subdivisions and 

quasi public authorities, and the ambiguity of the statutory 

term "Commonwealth," which in general understanding may or may 

not include such political subdivisions and quasi public 

agencies. See ibid. 

DEP's interpretation is also buttressed by the process 

prescribed for DEP's rulemaking authority, which reserves

oversight of promulgated regulations for the Legislature. G. L. 

c. 90, § 18. "That 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. Department of Pub. Health, 70 Mass. 

App. Ct. 337, 342 n.8 (2007). Compare Wilson v. Commissioner of 

Transitional Assistance, 441 Mass. 846, 853-854 (2004).

C. DEP's decision not to grant the amendment. Although 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 regulations 

substantial deference." Biogen IDEC MA, Inc. v. Treasurer & 

Receiver Gen., 454 Mass. at 184. The court will only overturn 
19

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." Fioravanti v. State Racing Commn., 6

Mass. App. Ct. 299, 302 (1978). We conclude that DEP's

application of its regulations and denial of NYF's proposed 

license amendment was not arbitrary or capricious, an abuse of 

discretion, or otherwise not in accordance with law. G. L. 

c. 30A, § 14(7)(g).

During the time the BRA owned the property, from 1979 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 subdivision of the Commonwealth, 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 renewal 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. Department 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. Authy., 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 property from the BRA to NYF's 

predecessor in interest and then to NYF, both private entities, 

did not change the classification of the tidelands as 

"Commonwealth [t]idelands" for two reasons. First, once 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 to 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. §§ 9.24, 9.25 (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 express 

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, when NYF gained title to the property, it did so 

"subject to an express or implied 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" (agreement) that explicitly includes the 

FPA requirements now contested by NYF among other conditions 

 

Additionally, although it was LDA, the BRA's tenant, that 

originally applied 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 agreement. While the BRA eventually came to support 

NYF's amendment application, and NYF argues that it and the BRA 

may amend this agreement 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.

Lastly, NYF argues that the classification of its property 

as lying on "Commonwealth [t]idelands" contradicts the 

presumptions embedded in DEP's definitions of both "Commonwealth

[t]idelands" and "[p]rivate tidelands."

16 The presumptions in 

 

16 The Waterways Regulations state that in applying the

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 running 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 of 
23

question essentially 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 tidelands 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, was 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 

"shall 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 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 

or upon a final judicial decree that such tidelands are not 

subject to said easement of the public [for navigation, 

fishing, fowling, and passing freely over and through the 

water]."

310 Code Mass. Regs. § 9.02 (2000).
24

hold "Commonwealth tidelands" 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.