Governor Patrick Signs
Chapter 91 Landlocked, Filled Tidelands Law

November 15, 2007

Today, Governor Deval Patrick signed a new law clarifying Chapter 91 landlocked, filled tidelands.

Earlier this year the Massachusetts Supreme Judicial Court issued a decision that dramatically affected the Real Estate Industry. The case not only impacted development and finance, but also residential and commercial brokerage.

For those unfamiliar with Chapter 91 in Massachusetts, it is a law that originated during the Colonial era that allows the general public access to the ocean and great ponds for "fishing, fowling and navigation," which at the time was the foundation of the Massachusetts economy. As populations grew, there were pressures to fill and develop many of these areas. One of the classic examples is Boston’s Back Bay. It was once underwater, but was filled, developed and is now a vibrant part of the City. This issue is also prevalent in many other costal communities, or those that border bodies of water that are subject to tidal flow.

These filled, landlocked tidelands are still subject to Chapter 91, with certain rights held by the citizens of the Commonwealth. However, it was believed that the Department of Environmental Protection, who administers the law, had the authority to grant permits for development of these areas. The Massachusetts Supreme Judicial Court issued a decision in February 2007 finding that the Agency lacked that authority. This was a drastic change to the rules that developers had followed for many years, and brought tremendous uncertainty to the marketplace resulting in all projects becoming subject to legislative review and approval. The Greater Boston Real Estate Board has been working diligently with legislative leaders to clarify this situation, and craft a workable solution. The passage of this legislation will restore clarity to the permitting and development process. This law takes affect today at 12:51 p.m.

Click here to see a copy of the bill