by Matthew J. Kiefer and Louise B. Giannakis
The Commonwealth of Massachusetts prides itself on being “first in the nation” for many milestones: the first public park (Boston Common), the first college (Harvard) and the first to legalize same-sex marriage. A lesser known “first” was the Commonwealth’s formal recognition of the public trust doctrine, a legal concept dating at least to Justinian. The doctrine, first codified by the Colonial Ordinances of the 1640s, obligates the Commonwealth as trustee to ensure that land subject to tidal action is used for public benefit. The doctrine evolved into M.G.L. c. 91 (“Chapter 91”), the Public Waterfront Act (“Act”). Historically, the Act focused on preserving public access to the water, protecting tidelands for water-dependent uses such as fishing and boating, and encouraging uses and development that animate the waterfront. However, with record-breaking coastal flooding and sea level rise no longer distant threats, climate resilient waterfront development has become a policy imperative in Chapter 91 licensing.
Chapter 91 is a comprehensive licensing program, administered by the Massachusetts Department of Environmental Protection (“DEP”), to ensure that proposed waterfront development projects meet public benefit standards with respect to environmental protection, public safety, navigation, preservation of historic maritime industries, and recreational, commercial and industrial activities and uses. Licensing by DEP can be a complex and lengthy process, especially for large-scale urban projects. Although DEP has yet to incorporate formal climate resiliency requirements into its licensing program, a prudent project proponent should include climate resilience as an integral part of a project’s public benefit profile in light of the DEP’s recent licensing decisions, public comments and formal requirements established by other regulatory agencies, such as the Boston Redevelopment Authority (d/b/a Boston Planning and Development Agency or “BPDA”).
Do the regulatory homework: Effective representation of a proponent of a waterfront project requires a determination of how the Chapter 91 and associated regulatory standards and policy goals apply to a particular project. See Waterways Regulations, 310 CMR 9.00 et seq., Designated Port Area (DPA) Regulations, 301 CMR 25.00 et seq., Municipal Harbor Plan (MHP) Regulations, 301 CMR 23.00 et seq. Early analysis of site-specific factors by a cross-disciplinary team is often required to identify which Chapter 91 requirements are applicable to a particular site — such as whether the site is historically filled or currently flowed tidelands or is nontidal, whether it is above or below the historic low water mark, and whether it serves water-dependent or nonwater-dependent uses. This is critical to developing an effective Chapter 91 permitting path, and should include evaluation of appropriate climate resiliency measures. For example, as sea levels continue to rise, it would be wise to anticipate whether structures currently above the high water mark, and thus exempt from licensing, may become “intertidal” and thus subject to Chapter 91 jurisdiction.
Review other agencies’ climate change initiatives for guidance: As climate resiliency becomes a policy imperative for the modern world, federal, state and local agencies are increasingly launching initiatives and establishing requirements to protect communities from the adverse effects of climate change. In March, 2016, Governor Baker signed Executive Order 569, “Establishing an Integrated Climate Change Strategy for the Commonwealth,” and in early 2018, authorized over $1.4 billion in capital allocations “to mitigate and adapt to climate change” and “build a more resilient Commonwealth.” These climate resiliency investments include infrastructure repairs and improvements, as well as grants to communities through the Municipal Vulnerability Preparedness Program and the State Hazard Mitigation and Adaptation Plan. In October, 2017, the BPDA formally integrated climate resilience measures into its approval process under Boston Zoning Code Article 80 for Large Project, Planned Development Area and Institutional Master Plan Reviews by requiring a “Climate Resiliency Checklist Report” that incorporates sea level rise, storm surge, extreme precipitation, extreme heat events, and other considerations. Other Boston initiatives include the recently-approved Downtown Waterfront Municipal Harbor Plan, which encourages a comprehensive, district-wide approach to creating a climate resilient waterfront that overcomes the limitations of a parcel-by-parcel permitting process, and Climate Ready Boston, an ongoing city-wide planning effort to address the effects of climate change. At the federal level, the newly revised Federal Emergency Management Agency flood hazard maps increase the reach of flood zones and show a stepped-up focus on the topic.
Consider climate resilience measures in recently approved projects: Many questions remain on the Chapter 91 licensing implications of many potential climate resiliency measures. Can raised seawalls or berms be licensed if they reduce public pedestrian access? Would a flood protection berm consisting of new fill in flowed tidelands be licensable? Would raising the grade of a project site to anticipate rising sea levels allow for a commensurate increase in building height? What is the scope of responsibility for an individual licensee whose site is located on an area-wide flood zone and whose flood protection activities may not be effective until the entire area is protected?
Regulatory uncertainty notwithstanding, it is clear that adapting to sea level rise is necessary for the long-term viability of a waterfront project. For instance, the developers of Clippership Wharf in East Boston have designed a floodable harbor-walk that can act as a buffer for high seas and are importing significant amounts of new fill to raise parts of the seven-acre site above anticipated flood levels. The developers of a large mixed-use campus at Suffolk Downs in Boston-Revere have proposed a sunken amphitheater with capacity to hold millions of cubic feet of flood water for days to address anticipated flood levels. The developers of the L Street Power Station in South Boston have proposed an elevated floor of the building to accommodate the possible need to raise the ground level while maintaining a reasonable floor to ceiling height.
In short, even in the absence of clear regulatory requirements, waterfront development proponents should incorporate climate resilience measures early in the licensing strategy, not only to extend the project’s design life, but also to facilitate the licensing approval by anticipating the public benefit expectations of the DEP and interests of the waterfront communities.
Matthew J. Kiefer is a Director at Goulston & Storrs, focusing on real estate development and land use. Matt has extensive experience licensing projects under Chapter 91, including Clippership Wharf in East Boston, the Innovation and Design Building in the Ray Flynn Marine Park, and Building 114 and the Spaulding Rehabilitation Center in the Charlestown Navy Yard. He co-chairs the firm’s Climate Resilience Task Force.
Louise B. Giannakis is an Associate in Goulston & Storrs’ Real Estate practice group. Louise graduated from Boston College Law School in 2017 and is a member of the Urban Land Institute’s Young Leader Group.
by Esme Caramello and Annette Duke
“If I see that a prospective tenant has ever had a lawyer in any proceeding at http://www.masscourts.org as of this case forward I no longer take them as a tenant. This is a free country. They certainly have a right to hire a lawyer and I have a right to not take them as tenants because of that.” Massachusetts Landlords Blog, June 12, 2015.
The Trial Court’s Electronic Case Access system (MassCourts) was not intended to be a direct, online “free tool for tenant screening.” But that is how it is increasingly being promoted and used:
“After years of lobbying from rental housing groups, the Massachusetts Housing Court has finally announced a powerful new and free tool for tenant screening: public internet access to all Summary Process, Small Claims, Civil and Supplementary Process case types…. This new system will enable landlords to research whether a potential or current tenant has been a party to a previous eviction, small claims or related housing case.” The Massachusetts Real Estate Law Blog, “ Massachusetts Housing Court and Tenant Eviction History Now Online,” April 24, 2013 (emphasis added).
While careful, conscientious tenant screening can help landlords avoid problems with new tenants, the automatic refusal to rent to anyone whose name appears in an online court database is a dangerous form of tenant blacklisting. Tenants are sometimes forced by absentee or unscrupulous landlords to access the courts to protect their families from unsafe conditions. For example, one tenant, 8½ months pregnant and shoveling the walkway in front of her unheated apartment, turned to the court to force an unresponsive bank that owned her building to pay its bills and maintain the property. Another faced a retaliatory eviction lawsuit after reporting a building-wide bedbug infestation affecting the health of her neighbors, families, and friends. Still another was brought into court after her landlord discovered she had a female partner. Blacklisting tenants like these merely because their names are online in MassCourts erects unfair barriers to finding an apartment for anyone who has ever been to court in a housing case – tens of thousands of people every year – and could place especially vulnerable people with limited housing options into a spiral towards homelessness.
While some landlords undoubtedly look beyond the mere fact of a tenant’s appearance in MassCourts to the actual “Disposition” or docket itself, even this increased level of scrutiny may not elicit an accurate picture of a tenant. MassCourts was not designed as a tenant-screening tool. It is a case management database built to assist the court system in managing litigation, and it uses shorthand that suffices for that purpose. It does not tell the real story behind any landlord-tenant dispute. Most summary process dockets, for example, ultimately reflect a judgment for the landlord. This does not equate to a finding the tenant was at fault. The vast majority of tenants are unrepresented, and the few who are lucky enough to access legal assistance often do not agree to have a judgment enter against them, but instead secure dismissal of the case or a straight agreement (with no judgment of eviction) in which the parties make commitments to each other, such as payment of rent in exchange for repairs.
To make matters worse, there are inaccuracies in the MassCourts database. For example, a review of housing cases closed by the Harvard Legal Aid Bureau in 2013 showed that in nearly 10% of the cases, MassCourts incorrectly displayed a judgment of eviction against the tenant when there was none. In MassCourts, “no-fault” evictions are sometimes miscoded as “cause” cases. Cases that have been dismissed may appear as open, active cases or even judgments in favor of the landlord. Minor children may erroneously appear as parties in their parents’ eviction cases, potentially hurting their creditworthiness before they have a chance to enter the adult world. MassCourts remote access takes these errors and turns them into major barriers to housing, with no way for a tenant to even know that this information is being used by a landlord and no clear way to challenge its accuracy.
Other states have recognized the problems with court-enabled tenant screening and scaled back access. For example, in 2012, the Chief Administrative Judge of the New York State Office of Court Administration announced that the court would no longer include in the electronic data feed it sold to tenant screening companies the names of tenants involved in New York City Housing Court evictions. See Hon. Gerald Lebovits and Jennifer Addonizio, The Use of Tenant Screening Reports and Tenant Blacklisting, New York State Bar Association (2013). Applauding this action “to protect both New York’s tenants and the integrity of the court system,” one legislator explained: “When the fear of being ‘blacklisted’ causes many tenants to avoid the court and relinquish their legal rights, access to justice is fundamentally undermined.” Sen. Krueger Announces Courts to End Electronic Sale of Housing Court Data Used in “Tenant Blacklists” (2012).
Massachusetts, through the Trial Court Public Access to Court Records Committee, can and should implement safeguards that protect tenants without impairing the public’s right to open courts. A very limited change to how party identification information is displayed online could counteract the misuse of MassCourts: tenant names should be replaced with numbers or initials in the online database. Parties and attorneys would still be able to access case information online with docket numbers. The official case record would still be public, would still include parties’ names, and could be accessed by going to court. This change would balance protecting tenants’ rights with keeping court records public.
With 40,925 eviction cases filed in Housing and District courts across the Commonwealth in FY 2014 alone, the easy, online use of MassCourts as a free tenant screening tool has become a serious access to justice issue. Without reform, tenants will increasingly fear that the consequences of coming to court will be that they won’t be able to find housing in the future, and they will not see courts as a place to seek justice.
Annette Duke is a housing attorney at the Massachusetts Law Reform Institute, a statewide nonprofit poverty law and policy center. She specializes in public housing and landlord-tenant law and is currently working with the Massachusetts Access to Justice Commission and a broad coalition of organizations to expand housing courts statewide.
Esme Caramello is the Faculty Director of the Harvard Legal Aid Bureau, a century-old student-run legal services organization that represents low income clients in housing, family, wage and hour, and government benefits cases. She is also a Clinical Professor at Harvard Law School, where she teaches courses in housing law and policy and legal skills and ethics.