SJC says public still has rights to tidal areas filled in since 1866

The court then pushed the reach of its policy decision back to 1866, which is when the state began issuing permits to developers and governments to fill in tidal lands, according to Diane C. Tillotson, a Boston attorney who filed a friend of the court brief in the case.

She said the court's ruling is limited to those properties that lie "one street seaward" of the Atlantic Ocean, and where the property owner is planning to make a change, either by expanding existing buildings or by building an entirely new project. She said land – such as the Back Bay – that is further inland has already been removed from regulation under Chapter 91.

As a result of today's SJC decision, Tillotson said, a developer "just can't go to the building department or local Conservation Commission. You are going to need a license from the Department of Environmental Protection in order to do that. And you are probably going to have to provide public access.''

The SJC ruled in the case of Joseph V. Arno, who wanted to redevelop shorefront property on Nantucket Island. The state DEP said the property is regulated by Chapter 91, but lower court judges eventually rejected that idea, saying the state waived its rights in 1922 when the attorney general's office approved a deed for the property.

But Cordy said neither the attorney general nor a judge can strip the public of its regulatory rights over land that was once wholly owned by the Commonwealth when it was underwater.

"Neither the Land Court (in 1922) nor the Attorney General had the authority to divest the public of its rights in Arno's parcel,'' Cordy wrote. "Regardless of whether Arno's parcel consisted of filled tidal flats or filled submerged lands, only an act of or an express delegation by the Legislature could extinguish the public's rights in the parcel.''

Cordy said the details of exactly what Arno must do must still be worked out between Arno and the state.