I was reading in the paper something about a chapter 91 license. What is that?

In Massachusetts the land that  was formally submerged land and tidal flats lying below the high water mark are considered tidelands.  If one wants to build within that area they have to apply for a license from the Commonwealth of Massachusetts acting through the Department of conservation and recreation  for a license under Massachusetts General laws chapter 91.  The department is in charge of all land, rights in land, flats, shores and rights in tidewaters. Commonwealth tidelands is land held by the Commonwealth in trust for the benefit of the public or held by another party by license or grant of the Commonwealth subject to an express or implied condition that the property be used for a public purpose.  Private tidelands are tidelands held by private parties subject to an easement of the public for the purposes of navigation and free fishing and fowling and of passing freely over and through the water.  A license may be issued provided that the tidelands are utilized only for water dependent uses or otherwise serve a proper public purpose  A good example of that is the harbor walkway. The walk from Christopher Columbus Park to Rowes Wharf is one of the most pleasant experiences that the city has to offer and it exists primarily because of chapter 91.  So any owner of a property which encroaches into the ocean or any land that was formally covered by water would be subject to a chapter 91 license requirement.  The Northpoint  development in Cambridge was held up by a citizens action against the Department of Environmental Protection which had issued a license to the developer based on the claim that the development did not constitute a proper public purpose.  That case ultimately wound up in the Supreme Judicial Court, our highest court of appeal, which held that the department did not have the authority to issue the license and that the department's issuance of regulations which would have exempted the project were beyond its authority under the statute and that it was up to the legislature to make that determination.  That stopped the development in its tracks until the legislature passed legislation in 2007 which amended chapter 91 by defining landlocked tidelands as an exemption to the permitting requirement which included the former railroad land located in the Northpoint development.

If you have questions about this or any other real estate matter, please contact Tom Bennett at (617) 531-6574 or tvb@barronstad.com.