Landlocked Tidelands Case: Petition for Rehearing Denied by SJC

Beveridge & Diamond, P.C. - Massachusetts Environmental, Land Use & Real Estate Alert, 2008

On February 12, 2007, the Massachusetts Supreme Judicial Court (“SJC”) invalidated a regulatory exemption promulgated by the Department of Environmental Protection (“DEP”) under G.L.c.91 (“Chapter 91”), the waterways statute, relative to “landlocked tidelands”.  Moot v. Department of Environmental Protection, 448 Mass. 340 (2007).  This decision appeared to invalidate the exemption relied upon for the construction of many existing projects on landlocked tidelands, and created enormous uncertainty for new projects proposed to be constructed in landlocked tideland areas.  On November 15, 2007 legislation was enacted in response to the SJC decision resolving the uncertainty created by the decision.

On November 16, 2007 John Moot and Efekta Schools, Inc, two plaintiffs in the landlocked tidelands case, filed a petition for rehearing with the SJC.   The plaintiffs argued that the legislation enacted to resolve the issues raised by the SJC in its original decision did not sufficiently address the SJC’s concerns.  The SJC denied the petition for rehearing without expressing a view on the substantive merits of the plaintiffs’ claims on December 19, 2007 stating that the plaintiffs were free to raise their issue by appropriate motion to the Superior Court.