Heard: November 13, 2017.
action commenced in the Land Court Department on July 7, 2006
case was heard by Keith C. Long, J., and a complaint for
contempt, filed on September 8, 2006, also was heard by him.
Patrick P. Dinardo for Boston Boat Basin, LLC, & another.
M. Allen (William A. Zucker also present) for the plaintiff.
Present: Kinder, Desmond, & Sacks, JJ.
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. See Arno
v. Commonwealth, 457 Mass. 434, 436,
455-456 (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.
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.
our description of the case largely from the judge's
detailed decision. Except as to the contempt claim, the
pertinent facts are undisputed.
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.
2006, CWECA filed this suit against the locus's prior
owner of record and its affiliates (the prior
owners) 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. 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.
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
December of 2016, the judge issued a decision (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.
restrictions on Boston Boat's use of the locus stem from
three sources: conditions on an access
easement; a zoning variance and permit limiting
the number of parking spaces at the locus; 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). 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."
are the restrictions that Boston Boat sought to void as
inconsistent with the public trust doctrine.
The c. 91 license.
1997, the department issued to the developer a thirty-year c.
91 license for the locus. Boston Boat succeeded to that
license in 2010. 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
"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 ...