State rules shortchange urban waterfronts

Last December, after much wrangling between state officials, city officials, developers–especially my client, Hyatt Development–and environmentalists, state Environmental Affairs Secretary Robert Durand approved a plan for the development of Boston’s Fan Pier. The Fan Pier design, which allows for a mix of housing, hotels, office buildings, shops, restaurants, and a new home for the Institute of Contemporary Art, was the final piece of a South Boston Waterfront District Municipal Harbor Plan–three years in the making–that will guide development in what may become the city’s most exciting new neighborhood over the next decade.

What neither the Fan Pier plan nor the rest of the waterfront scheme does is conform to the state’s Chapter 91 regulations, which govern coastal development. And that’s a good thing. Indeed, no significant building has ever been built on Boston Harbor in compliance with these rules in their 10-year history and it’s unlikely that one ever will be. And that’s a good thing, too. A planning process similar to the one for the South Boston waterfront–one that will likewise supercede the terms of Chapter 91’s regulations–is now underway in East Boston, with more to come in the city’s other harbor neighborhoods. It’s time to reflect on what has been learned about how to make Boston’s waterfront into a great public place–and how much more there is to that process than the Chapter 91 regulations take into account.

Ordinarily, a city sets the framework for how a neighborhood will grow and change through zoning. On the Massachusetts waterfront, however, state law mandates that the secretary of environmental affairs take an active role in ensuring public access at the water’s edge. Through statutes and regulations that implement the ancient “public trust” doctrine–a concept originating in Roman law that the sea and the shore are common property belonging to all people–the secretary has the right and the obligation to determine that local zoning of waterfront property complies with the public interest.

Traditionally, waterfront development in Massachusetts subject to the public trust doctrine was evaluated under a generic and flexible standard: Would the public benefits of the development outweigh its public detriments? But in 1990, the Department of Environmental Protection created detailed regulations to protect the public interest in the waterfront by establishing rigorous requirements for any proposed development, including mandated height limits, setbacks, and open space. They were as complicated as they were specific. The permitted height, for example, was 55 feet for buildings within 100 feet of the water’s edge; for other buildings, “55 feet plus one-half foot for every additional foot of separation” from the water’s edge. The stated purpose of these rules was to limit the extent of development so as to leave room for public access and traditional maritime uses.

Nothing in prior Massachusetts history, nor in the experience of other states or other countries, suggests that strict adherence to such a set of detailed “operating instructions” for waterfront development is necessary–or even very helpful–to protect the public’s use and enjoyment of the water’s edge. And certainly not these instructions. The regulations do not reflect the most basic realities of urban design and economics. Luckily, Chapter 91 does offer an out–a “municipal harbor plan” developed by a city and approved by the secretary of environmental affairs, who ensures that it protects the public’s interest in the shoreline even if it does not conform to the letter of the regulations.

After their enactment, however, Chapter 91’s detailed regulations somehow came to be treated as a sort of gold standard for environmental protection. Thus, when Mayor Thomas Menino began to sketch his vision of a new South Boston Waterfront in 1997, it was widely claimed by the press and by environmental advocates that any attempt to modify the requirements of the 1990 regulations by adoption of a harbor plan containing alternative standards would be a “violation” or “circumvention” of state law and, even worse, of the sacred public trust.

Today, most actors in the drama of Fan Pier/South Boston waterfront planning would agree that the approved plan will yield waterfront development that serves the purpose of public use and enjoyment better than strict compliance with the 1990 regulations would have. That’s because public activation of an urban waterfront depends on considerations that are very different from those at work along pristine shorelines. But still the myth of the Chapter 91 regulations as touchstone of the public interest lives on. It’s time to debunk that myth–and move toward a more appropriate standard for urban waterfront development.

Doing No Harm vs. Doing Good

Most waterfront regulatory thinking begins with a proposition that is the environmental equivalent of the Hippocratic oath: “First do no harm.” It’s a reasonable starting point. The natural condition of our shore–whether rocky outcroppings, salt marsh, or sandy beaches–will typically not be improved by development, as seen from an environmental, aesthetic, or recreational perspective. It is an appropriate goal of regulation to limit the interference caused by human activity. This is the perspective the 1990 regulations–which govern the entire Massachusetts coastline, whether downtown Boston or the dunes of the Outer Cape–operate from, making sure that development is not too tall, is not too close to the water’s edge, and does not take up too much open space.

On urban waterfronts, however, this assumption is deeply flawed. The Fan Pier site, for example, is a dirt parking lot and has been for decades. Before that it was a railroad yard. Before that it was a mud flat. “First do no harm” is not a very useful guiding principle for thinking about how the Fan Pier site, or many similar urban waterfront properties, should be developed. Nor can we assume that an urban waterfront offers the natural attraction for the public that much of the rest of our coastline does. In the city context, creating places that are truly welcoming and inviting to the public often involves substantial alteration of existing conditions.

The South Boston Waterfront plan will produce better development than the 1990 regulations precisely because it embraces these distinctive aspects of urban waterfronts. While the 1990 regulations focus on building dimensions and scale, Mayor Menino properly emphasized a vital mix of uses that keeps the district constantly active as the touchstone of successful development.

The battle over height limits drew the most public attention, but the most important aspect of the harbor plan is the balance of uses–including civic and cultural uses–in order to get people down to the waterfront as much as possible. The mayor’s plan requires at least one-third of the land to be used for housing, no more than one-third to be used for office space, and leaves the rest for hotels, restaurants, and shops. Development projects with this sort of balance will encourage and embrace significant public use, not merely tolerate it. Including a new Institute of Contemporary Art and other major civic and cultural uses into the plan is also a fundamental improvement over the 1990 regulations, which have more modest and generic requirements for public activity. On Boston Harbor today, the New England Aquarium and the Children’s Museum attract diverse groups of visitors in a way that few other parts of the waterfront do.

In the urban context, there is no compelling reason to fear “loosening” of the strict numerical requirements of the 1990 regulations. In fact, those requirements are frequently at odds with the basics of good urban design. Compare Rowes Wharf, for example, with the new federal courthouse. Rowes Wharf was built prior to the 1990 regulations under the old “public benefits exceed public detriments” standard. It violates the 1990 regulations in a number of ways–it is too close to the water, and too tall–and could not be built today. The new federal courthouse comes closer than any other major building on Boston Harbor to compliance with those rules. The courthouse site has much more open space than Rowes Wharf, but the open space seems carefully guarded by the broad shoulders of the building itself. There is nothing to match the public invitation extended by Rowes Wharf’s wonderful arch. The courthouse is set back farther from the water’s edge than Rowes Wharf, but it’s not clear that this additional waterside space makes it more attractive to the public. This is a year-round waterfront, and for much of the year water-shuttle commuters are grateful for the shelter of Rowes Wharf just a few steps away. Buildings that hug the waterfront tightly may not be such a bad thing after all.

Coming Attractions?

The mania over strict compliance with height, setback and other requirements of the Chapter 91 regulations is also precluding visionary thinking about truly special public destinations on Boston Harbor. Many observers see the Harborlights outdoor concert facility as one of the best things to happen to the Boston Harbor waterfront in the last ten years. When it moved to its current location, however, it was viewed by the Department of Environmental Protection less as an important public attraction and more as a troublesome oddity that did not fit the rules (the Chapter 91 regulations are not supposed to allow such a use in that part of the city, which is reserved for marine industrial uses). So Harborlights got only temporary approval; it was granted a five-year license and told to move along thereafter. (The search for a new site is now underway.) This narrow thinking discourages the boldest, most creative, and most exciting waterfront projects. It would be a shame to be trapped by a point of view that generates reservations, rather than enthusiasm, about a Bilbao Guggenheim or a London Millennium Wheel.

It’s not clear that even the South Boston Waterfront plan reflects a realistic appreciation of how difficult it is to create major civic and cultural attractions–and how important it is to do so. Significant public destinations have been critical to the success of the great urban waterfronts around the country, such as Baltimore’s and San Francisco’s. Here in Boston, our last two major facilities of this type were built in 1969 (the Aquarium) and 1975 (the Children’s Museum). In some ways, the waterfront plan’s designation of Fan Pier as the site of a new Institute of Contemporary Art makes creating public destinations appear simpler than it really is. The ICA was an obvious choice only because its feasibility had already been explored by the mayor’s Boston 2000 Commission. But there is no public process in Boston for coming up with other terrific ideas for new civic and cultural facilities that will engage the public. An integral part of the waterfront planning process ought to be developing a community-based consensus–a “top ten” list–on the public uses and amenities that would be most desirable.

Moreover, the proposed Fan Pier development is one of the few projects on Boston Harbor that is big enough to incorporate a major facility like the ICA. If every development is required to include on-site public amenities in proportion to its scale, we will end up with a series of water taxi landings, community meeting rooms, and minor historical exhibits. This is exactly what has happened on Boston Harbor so far. Every development should certainly be expected to provide some baseline elements of public access, such as a harborwalk which allows public pedestrian access all across a waterfront site from one side to the other. But if more is demanded of developers, the public would be better served by having them pool their resources into larger scale efforts like cultural facilities, Boston Harbor Islands projects, community boating improvements, or major water transit initiatives. The 1990 regulations, which stress individual developer obligations on their own sites, do not permit, let alone encourage, this kind of creativity.

It is also dangerous to assume that major new public attractions can readily be built without substantial public assistance. The ICA happens to have a good head start on a capital campaign. Other good ideas are likely to start at ground zero when it comes to funding. No other city has accomplished a waterfront success without a significant contribution of public dollars. There is no real reason to think that Boston can.

The Last Frontier

Waterfront development is critical to Boston’s continuing health and vitality. Even with reasonable public contributions, private development will for the foreseeable future be a prime source of funding for new public amenities on Boston Harbor. The opportunity to live, work, and play on the harbor is one of Boston’s tremendous competitive advantages, if fully utilized. The rundown buildings, dilapidated piers, and parking lots that still dominate large stretches of the harbor waterfront remain the city’s last great frontier.

Future downtown development cannot be restricted to the few remaining locations within the Financial District. Soaring office and apartment rents discourage new businesses and residents from coming to or staying in Boston. Thousands of new housing units and millions of square feet of new office space have been built in the suburbs over the last five years, many times what was built in Boston itself. The obstacles thrown in the way of development on Boston’s waterfront are the opposite of smart growth.

The state’s 1990 waterfront regulations are seen by many people as a bulwark against private exploitation of a communal asset–our Massachusetts coastline. In Boston, that asset has become all the more valuable–and worthy of protection–by virtue of the billions of public dollars that have gone into cleaning up the harbor. It’s for good reason that any suggestion to change the rules that protect the public interest arouses suspicion. At the same time, that very interest in the coastline and vast investment in environmental improvement compel us to ask whether there are not better ways to make our urban waterfronts into true public resources than these regulations. It is time to move away from the rule-bounding thinking of Chapter 91, and toward dreaming of the kind of waterfront that Bostonians and all Massachusetts citizens can be proud of for generations to come.

Gregory Bialecki is an attorney at the Boston firm of Hill and Barlow and counsel to Hyatt Development.