Federal Court Says Long Wharf Pavilion May Not Be Converted into a Restaurant

BOSTON – A federal court in Boston has rejected efforts by the Boston Redevelopment Authority (BRA) to convert an open-air pavilion on the end of Long Wharf into a restaurant.  Siding with the National Park Service (Park Service), the court held that the end of Long Wharf is protected by a federal law requiring the land to be used for public outdoor recreation.

The case concerned the federal Land and Water Conservation Fund (LWCF) program, which is administered by the National Park Service.  Since Congress enacted the LWCF Act in 1965, the Park Service has awarded over 42,000 grants totaling over $3.7 billion.  A LWCF-assisted park is located in over 98 percent of counties in the United States.

Under the LWCF program, a municipality, state, or county can apply for federal money to acquire or develop a piece of land, but, in exchange, it must agree to use all or part of that land for public outdoor recreation forever.  The land subject to that perpetual restriction is called the “6(f) area.”  The entity applying for an LWCF grant must enclose with its application a boundary map showing the 6(f) area, and the Park Service must agree on that boundary before it awards the grant.  After the boundary is agreed upon, the grant recipient may not convert the 6(f) area into something other than public outdoor recreation use unless it offers, and the Park Service accepts, substitute property of at least equal fair market value and reasonably equivalent recreation usefulness and location.

In 1980 the BRA, which owns Long Wharf, applied for a LWCF grant to help develop Long Wharf, which was then a dilapidated pier.  The Park Service awarded the grant in 1981, and the BRA used the money for construction work on the wharf.  Long Wharf Pavilion was later built on the northern half of the seaward tip of Long Wharf.  It is an open-sided structure made of granite, brick, copper, and slate.  Construction ended in 1988.

Decades later, the BRA sought to convert the pavilion into a restaurant called Doc’s Long Wharf.  BRA argued that such a conversion would be permissible because, it said, the pavilion was located outside the 6(f) boundary on Long Wharf.  The Park Service disagreed based upon its decision in the documents in its grant file, including a 6(f) boundary map dated 1980, which the Park Service said the BRA had enclosed with its application.  The BRA denied enclosing the 1980 map with its application and claimed it had never seen that map.

The BRA sued the Park Service, challenging the Park Service’s reliance on the 1980 map.  The BRA argued that a different map, dated 1983, was the 6(f) boundary map for Long Wharf.

The federal court sided with the Park Service, finding that the BRA indeed had submitted the 1980 map with its application.  Because Long Wharf Pavilion is within the 6(f) boundary on Long Wharf, the BRA may not convert the pavilion into a restaurant unless it offers, and the Park Service accepts, substitute property of at least equal fair market value and reasonably equivalent recreation usefulness and location.

United States Attorney Carmen Ortiz and Michael Caldwell, Regional Director of the National Park Service made the announcement today.  The case was handled by Assistant U.S. Attorney Christine Wichers of Ortiz’s Civil Division.