Privatization of an irreplaceable public amenity at the “Head of the Boston Harbor” has

been the issue with Pier 5 since the very beginning of the transfer of the Charlestown

Navy Yard from the U.S. Navy to the City of Boston.

We need to request a legal explanation and chronology of the exact process by which

the land uses asserted by the BRA/BPDA in their Plans, RFPs, and proposals were

determined since the original transfer of the Navy Yard to the city.

At what point, and by what legal process, were these land use directives subverted from

the original intentions of the ancient chapter 91 laws that clearly preserve a stipulation of

our “Piers over flooded tidelands for Water Dependent uses only”?

The first egregious flaunting of this regulation was Constellation Wharf which created

the first major blocking of the vistas of the harbor and Insertion of a non-water

dependent use Into our Navy Yard waters. In addition to this privatization of our rights to

our harbor water access, this Incorrectly ascribed land-use has resulted in a myriad of

public rights, circulation, maintenance and other related problems.

Now, with the Navy Yard’s Pier 5, there are ever more egregious consequences of the

blocking of the very Head of the Boston Harbor itself. Legal issues have surrounded

this situation from the beginning and will continue at any developers peril:

• How did the BRA initially mis-zone a situation so clearly protected by chapter 91.

• Why, when the problems of this mis-zoning at Constellation Wharf had been clearly

identified, did the BRA persist in pushing non-water dependent uses into our States

waters in BRA RFPs, (especially irreversible multi-owner residential, etc.)?

• Why was the agreement to allow the development of Flagship Wharf wings and

underground parking in exchange for eliminating townhouse units on Pier 5 not

respected and why has the actual agreement disappeared?

• Was the BRA‘s manipulation of an expired Harbor Master Plan in order to justify this

mis-zoning of residential non-water dependent use legal? Answers to that question

were never received in responses to letters from the community to MEPA and other

legal divisions of either city or state in the period before the Revised Harbor Master Plan

was developed.

• What entity owns the waters under Pier 5 and what controls and permits are involved

(Federal, State, Coast Guard, CZM, etc)?

• Does an entity that controls piles and piers have a lease or now, without an existing

structure, is it an “air-rights” situation? Has that been legally defined? How is that

situation taxed?

• How will the Environmental impact Report (EIR) / Environmental impact Statement

(EIS) process be handled and scheduled? With so many new urban planning, legal and

technical construction techniques being suggested in these proposals this EIR/EIS

process will be essential.

• Correct guidelines for an EIS or EIR require analysis of the alternatives against a “No

Action, Minimum Impact or Open Space Alternative”. What plan will be used for that

specific alternative –“No Action”? “Minimum Impact”? “Open Space”?

• Selection criteria of any alternative should not be conditional on that Alternative’s

ability to support a quasi Governmental agency.

• The essential problem with regarding the BRA and now the BPDA remain: It is a

conflict of interest for the BRA/BPDA to act as both City Planners of Boston and real

estate developers.

We should not be ready to accept any alternative that we know is wrong and not in the

best interest of our City of Boston until we receive the answers to these questions.

Sherrie S. Cutler, A.I.A.