, Newburyport, MA

September 3, 2007

37 years later, waterfront's woes remain unresolved

Victor Tine

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NEWBURYPORT -- While there were many success stories in Newburyport's urban renewal program, there was also one conspicuous failure -- the development of the property known as the central waterfront.

Three times the Newburyport Redevelopment Authority tried to get something built on the central waterfront and three times it failed.

The land between Market Square and the Merrimack River continues to stir up controversy to this day.

For years the debate raged over building waterfront hotels, stores and condominiums. Those plans are all gone, defeated one by one. Now the question for the NRA's waterfront is how much of it will be a park and how much will be parking.

Over the course of almost 30 years -- from 1972 to 1999 -- three separate teams of professionals were designated by the redevelopment authority to develop what was originally a 9.2-acre parcel bounded on the north by the Merrimack River, on the south by Merrimac Street, Market Square and Water Street, on the east by the Custom House Maritime Museum and on the west by the Chamber of Commerce building and the Black Cow restaurant.

Secrecy and controversy

Looking back, the first attempt to develop the waterfront was short-lived -- about a year from start to finish -- but the lawsuit it generated took nearly eight years to resolve.

According to news accounts at the time, the NRA put out a request for waterfront proposals in 1971, and in September received four plans.

All four contained mixtures of various uses -- a marina, a small inn, restaurants, shops and housing -- in a variety of different combinations.

The NRA heard from the four candidates in nonpublic -- possibly illegal -- closed sessions, and the board members made a selection behind closed doors as well, according to news accounts.

On May 1, 1972, in what was billed as an "announcement session," the board presented a consortium called Burlington-HDC as its "preliminary choice" to develop the central waterfront. The team consisted of a Vermont-based architectural firm, Burlington Associates, and Hunneman Development Corp., or HDC, a subsidiary of the Hunneman Real Estate company.

Mayor Byron Matthews said the NRA had made its decision on April 28, at what he called a "private NRA board session."

Among the proposals that were rejected was one from the Cambridge architectural firm Benjamin Thompson Associates. Thompson had already been chosen to design the redevelopment of the rundown area of Boston consisting of Faneuil Hall and Quincy Market, but was still several years from bringing that hugely successful project to fruition.

The NRA met on May 4 in the City Council chamber at City Hall, intending to formalize its designation, but 200 people attended -- many of them unhappy -- and the board put off any action.

While the selection process raised a lot of suspicions, then-NRA-member Jack Bradshaw said there was nothing sinister going on behind the scenes. Hunneman was a big developer with previous waterfront experience, Bradshaw said, so it was a logical choice.

"My recollection is that the board made an honest decision based on the facts in front of them, with the help of various consultants who looked at the schematics, the finances," Bradshaw said in a recent interview.

Among those in the audience was a Lime Street lawyer and Harvard Law School professor, William Harris. In selecting Burlington-HDC, he wrote in a memo, the authority was not following the city's urban renewal plan, which prohibited residential development on the waterfront.

The memo was written on behalf of Harris and a group he called the "Friends of the Newburyport Waterfront."

Harris had also been in attendance earlier in April at a party for Ben Thompson at the Byfield home of Richard and Joanne Purinton.

Thompson presented his waterfront plan to the gathering, and received an enthusiastic response to his mix of activities and use of public space, with very little residential development. Thompson's design featured buildings constructed perpendicular to the Merrimack River, following the lines of the city's long-gone 17th-, 18th- and 19th-century wharves, conforming to the ancient "wayes to the waterfront."

In contrast, Burlington-HDC proposed condominiums for 50 percent of the total project (later reduced to 20 percent). And, especially on the easterly side of the embayment, the buildings were situated parallel to the river, blocking the views and pathways from downtown to the water.

The whole issue soon became moot, because, on Oct. 2, Burlington-HDC notified the NRA that it was dropping out as developer of the waterfront.

HDC President Edward Stone said the "timing" of the project wasn't right, that Newburyport hadn't yet shown a record of success that would allow the developer to attract tenants and buyers.

Lengthy lawsuit

The Friends of the Newburyport Waterfront might have gone away at that point, except for one thing: Work was continuing on another new building a few yards away from the waterfront. It was known as urban renewal Parcel 8, across Merrimac Street from what is now the Firehouse Center for the Arts.

For Parcel 8, the NRA had approved a design that called for a 240-foot-long building that cantilevered as it rose to three stories: The first floor was 56 feet deep, the second 70 feet and the third floor 79 feet. The exterior of the top floor was to be made of precast concrete.

The Friends asked the National Advisory Council on Historic Preservation in Washington, D.C., to intervene. The council had oversight responsibilities when new construction might have an impact on properties on the National Register of Historic Places, like Newburyport's Market Square Historic District. Meanwhile, the Friends filed suit in U.S. District Court to halt the work and eventually obtained an order stopping all new construction in the urban renewal district.

The Advisory Council found the building "incompatible" with its historic surroundings, and the U.S. Department of Housing and Urban Development -- which was bankrolling the whole urban renewal project -- directed the NRA to consider the council's comments. Work was stopped and Parcel 8 remained just a cellar hole.

The Friends' suit languished in federal court until early 1977, when the Friends and the NRA agreed to take the case to the state Land Court. The Friends contended that 11 ancient public pathways -- those "wayes to the waterfront" -- were protected and couldn't be extinguished by the authority's eminent domain taking of the waterfront property.

"It wasn't just a set of streets," Harris said. "It was an issue of freedom."

Harris said the earliest English settlers had brought with them the principle that people were guaranteed access to the marketplace, and the "wayes" represented that access. Not coincidentally, preservation of the "wayes" would also guarantee that no one could put up a building that blocked off the river from the public.

Harris said the Friends weren't seeking to thwart development on the waterfront, but rather to keep the public access open and make sure the configuration of buildings would be perpendicular to the river, as in Thompson's proposal.

"If they'd picked his plan there wouldn't have been a fight over 'wayes to the waterfront,'" Harris said.

Settlement comes

The case went to trial in late June 1978 before Land Court Chief Justice William Randall, who in early July traveled to Newburyport to conduct a view of the site. After eight days of testimony, 20 witnesses and 115 exhibits (including 102 by the Friends), Randall issued a 33-page decision on Jan. 30, 1979. In it, he dismissed the Friends' case in its entirety.

A month later, the Friends filed their appeal. A three-judge panel of the state Appeals Court heard oral arguments in November 1979 and, in February 1980, issued a ruling.

The court upheld the bulk of Randall's original decision but found two "wayes" had not been legally abolished. However, the court also ruled that those "wayes" only existed in their original form, that they did not automatically extend to the river when the waterfront was filled over time.

Byron Matthews had decided not to run for a sixth term as mayor in the 1977 municipal election. In January of 1978, he was succeeded by Richard Sullivan, who initially supported the NRA's position in the case, although he was not in principle opposed to public access points to the river. Over time, Sullivan appointed new members to the NRA.

After the Appeals Court ruling, with the Friends contemplating an appeal to the Supreme Judicial Court, Sullivan told the city's attorney, Richard Jones, to explore a settlement with the Friends.

Jones telephoned Harris, who was working and living in California, but who still retained his home on Lime Street -- and his interest in preserving the "wayes."

"My memory is that Bill and I hammered out the framework for an agreement," Jones said last week, quickly adding that there were several other participants in the talks.

At the end of March, a little more than a month after the Appeals Court ruling, they had a deal.

"Timing is everything and the time was right," Jones said.

Six "wayes" would be preserved, but two of them could be partially relocated to accommodate a building. An independent board of trustees would be appointed to oversee and manage the "wayes" and the public waterfront boardwalk, which had been built while the lawsuit wound its way through the courts.

Jones hopped a flight to Los Angeles and on March 26 got Harris' signature on a settlement. He flew right back, and on March 27 the NRA held a special meeting to ratify the agreement.

"There was a sense of urgency," Jones said. "We felt we needed to get it done."

At last, the path seemed clear to bring development to the waterfront.

Or maybe not.

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