, Newburyport, MA

January 4, 2013

NRA waterfront plans face possible legal challenge


---- — NEWBURYPORT — The Committee for an Open Waterfront has formally objected to the Newburyport Redevelopment Authority’s plan for mixed use development on the waterfront.

And the citizens group is developing its own plan for the 4.2 acres that will be ready within 45 days, organization leaders say.

Members of the NRA have produced preliminary plans to develop two commercial buildings on the riverfront land that members say will pay for creation and upkeep of a park on that property.

Chairman James Shanley says the NRA is developing a request for proposals that will be extended to developers and bankers. No date for the completion of the RFP has been finalized.

On Wednesday, a letter from the COW group was presented to Shanley at the NRA’s regular meeting.

Mark Peters, an attorney with the Boston firm of Rubin and Rudman LLP, said that COW was opposing the NRA plan, in part, because it says the NRA is violating the state’s Chapter 91 guidelines relating to tidelands.

“All of those tidelands (on the riverfront) are Commonwealth tidelands as a matter of law,” the letter said. “The Authority therefore holds those tidelands upon an indefensible trust for the benefit of the people.”

The letter added, “The Committee for an Open Waterfront would call it to your attention that the mixed use development the Authority proposes is not a water-dependent use within the meaning of Chapter 91.

“Nor, the Committee would assert to you, does the construction of residential and commercial buildings constitute a ‘proper public purpose’ when placed on Commonwealth tidelands that embrace an historic waterfront immediately contiguous with an historic district.”

On Wednesday night, Shanley declined to comment on the letter. He did not read it at the meeting and did not share it with the media. He said he wanted to wait until he had the opportunity to discuss it with the lawyer for the NRA, Carol Powers.

However, it was mentioned at the meeting that Powers has been hospitalized in Boston after a serious auto accident and could be under care in that city for at least a month.

Tom Salemi, a member of the NRA board, yesterday said that the board will have a comment after the letter can be read by legal counsel.

The NRA commissioned, and has received, a general outline from professional consultants calling for two commercial buildings that would include shops, restaurants and 30 to 35 condominium units.

They say that revenue produced by the private project will help pay for the creation of a park, and revenue for its upkeep.

Although nothing has been finalized, NRA treasurer Adam Guild said it would be about a $20 million project with buildings and park.

The Peters letter written on behalf of COW urged that the NRA make environmental assessments before it extends the RFP. The NRA owns the land, not the city.

“The Authority owes it to the city — its mayor and City Council — and to the entire community to examine, through the medium of an environmental assessment, both the legal and environmental constraints on the uses that might be made of the waterfront together with the legal and environmental opportunities that the waterfront might, with the Authority’s fulfillment of its public trust, offer to all its users.”

The letter said that should the Authority publish an RFP before conducting an environmental assessment, the NRA would be committing itself to a particular program of development without having any adequate understanding of whether that development could withstand environmental scrutiny, and “whether the development was anything more than an invitation to a new round of litigation.”

NRA members say they have environmental assessments in hand, and that much research has been done.

But in some areas, members seem willing to listen to the assessment of developers about what choices might be best.

On the question of whether the NRA will sell the 4.2 acres or lease it, Shanley has said he will see how developers want to pursue the matter.

Yesterday was the first time that COW has publicly stated it will propose a plan of its own. Details were not available at press time.