, Newburyport, MA

January 27, 2014

Beverly asks SJC to consider appeal

Beverly wants high court to weigh in on Black Cow decision


---- — BEVERLY — A state agency and two courts have already ruled on the legal battle over a proposed restaurant on the Beverly waterfront. Now the city is asking the state’s highest court to weigh in on the vexing issue.

The city has filed a petition requesting that the Massachusetts Supreme Judicial Court review an Appeals Court decision that struck down the plan to build a Black Cow restaurant on city-owned land.

A three-judge Appeals Court panel last month ordered the state Department of Environmental Protection to revoke the license the city needs in order for the restaurant to be built.

The panel said the DEP did not properly consider a competing proposal by Beverly Port Marina to build a boatyard on the site, which as one of the state’s designated port areas is governed by rules that encourage water-dependent uses.

The Supreme Judicial Court does not accept all applications for appeals, so there’s no guarantee that it will hear the city’s case.

Mayor Mike Cahill said the lease the city signed with restaurant owner Joseph Leone required the city to file the appeal request. But Cahill said the city is also looking at other options to break the stalemate on the waterfront, where a former McDonald’s restaurant has sat mostly vacant since the city bought the land in 1996.

“We’re working now to determine our best course of action on the waterfront,” he said. “The legal proceedings are part of it, but it’s one part of it. What I’m committed to is trying to get our waterfront to be open and productive for the whole community, including restaurants and shops and a harborwalk. That’s what we really are hoping to get to.”

The plan to build a restaurant has been up against a complicated tangle of regulations that has led to five separate decisions, three in favor of the city and two in favor of Port Marina. At one point, the Department of Environmental Protection ruled one way, then reversed its decision.

The hang-up is caused by the fact that the land is subject to restrictions under two different sets of rules. As one of the state’s 11 designated port areas, the land must be used for something dependent on the water. But because the city used a state Division of Conservation Services grant to buy the property in 1996, it must also be used for conservation and recreational purposes.

The designated port area regulations allow someone to submit a “competing proposal” for the land. If the proposal is determined to be a better use of the waterfront, the DEP must reject the lesser proposal.

The DEP at first ruled that Beverly Port Marina’s boatyard plan was a better use of waterfront land. But the agency later rejected the proposal, saying Port Marina did not show that its project would also meet the recreational requirements stipulated under the state grant used to buy the property.

A Superior Court judge upheld that decision, but the Appeals Court panel said the DEP does not have the “jurisdiction or expertise” to decide if Port Marina’s project would meet the requirements of another agency.

That ruling has left the restaurant plan in limbo, as it has been since Leone first submitted his proposal to the city in 2006. Cahill said he does not know when the Supreme Judicial Court will decide whether it will consider the city’s appeal.

If it doesn’t, one of the city’s options is to modify or eliminate the designated port area status that is restricting what can be built there, as other communities have done.

“We’re looking at what’s possible with that,” Cahill said.

Leone owns Black Cow restaurants in Newburyport and Hamilton.