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Boston College Environmental Affairs Law Review Boston College Environmental Affairs Law Review Volume 32 Number 2 The Law and Planning of Public Open Spaces: Boston’s Big Dig and Beyond Symposium Articles and Essays INDELIBLE PUBLIC INTERESTS IN PROPERTY: THE PUBLIC TRUST AND THE PUBLIC FORUM Karl P. Baker Dwight H. Merriam [pages 275–300] Abstract: In response to the ongoing debate over how much of the surface real estate reclaimed by the Big Dig should be devoted to open space, and how much to other uses, this Article examines two legal doctrines that are frequently implicated by plans for changes in use and disposition of publicly-owned property. While these doctrines stand on distinct historical and theoretical foundations and diverge from each other in many respects, there are important parallels between them in how they conceptualize the relationship between government’s power to regulate, control, and dispose of land it owns, and the rights belonging to what one scholar has called the “unorganized public” in that same property. On a more pragmatic level, commonality between these two doctrines arises from their applicability to the same physical spaces and their concern with the same types of governmental actions. Therefore, while both the courts and the academy have largely examined these doctrines separately, this Article employs a comparative analysis to better understand the relationship between government and the “unorganized public” with respect to publicly-owned property, and to more fully appreciate the limitations on the use of currently and formerly publicly-owned lands. LESSONS FROM THE WORLD TRADE CENTER FOR OPEN SPACE PLANNING GENERALLY AND BOSTON’S BIG DIG SPECIFICALLY Mary L. Clark [pages 301–323] Abstract: This paper looks to several land use planning issues at stake in both the World Trade Center redevelopment and Central Artery/Tunnel Project, offering some lessons for the future of public open space planning with respect to the inºuence of the press, the centrality of politics, the urgency of addressing public and private claims of land ownership, the need to engage the public, and seizing the opportunity to create new public transportation links. WINDFALLS, WIPEOUTS, GIVINGS, AND TAKINGS IN DRAMATIC REDEVELOPMENT PROJECTS: BARGAINING FOR BETTER ZONING ON DENSITY, VIEWS, AND PUBLIC ACCESS Daniel J. Curtin, Jr. Jonathan D. Witten [pages 325–346] Abstract: Large-scale redevelopment projects such as Boston’s “Big Dig” bestow numerous public beneªts—often without charge—to nearby property owners. In the case of the Big Dig, these beneªts include twenty-seven acres of newly created parkland, where once an elevated freeway stood. Beyond the immediate and obvious beneªciaries are nearby landowners seeking “better zoning” that might include a relaxation of maximum height or ºoor area ratios to enjoy the new view. This Article explores the often hidden impact of the nearby landowners’ means of accomplishing their desired result: bargaining with municipalities for private, derivative beneªts. The Article compares legislative and judicial responses to land use bargaining in California and Massachusetts, states with dramatically different approaches to land use planning. The Article concludes that bargaining in the absence of a guiding land use plan—the Massachusetts “model”—results in a chaotic land use policy and unpredictable development. REFLECTIONS ON COMMUNITY PROCESS IN THE MULTI- LAYERED COMMUNITIES OF A MAJOR URBAN DEVELOPMENT PROJECT Stephanie Pollack [pages 347–354] Abstract: Many legal, political and informal “community processes” were undertaken to shape the future of the land created by the underground rerouting of Boston’s Central Artery. In order to assess whether these processes were valuable, the Essay proposes an approach to determining what constitutes a successful community process in the context of a complicated urban development challenge. First, a typology of community processes is developed, involving both different layers of community and a spectrum of processes from the legal to the political. Next, four criteria are proposed for evaluating the efªcacy of community processes: inclusiveness, integrity, inºuence and implementation. Finally, these evaluation criteria are applied to determine the extent to which the different types of community processes used to shape the Central Artery Project’s open spaces were successful. The Essay concludes that the lessons learned in Boston can be used to shape more effective community processes elsewhere. PUBLIC PROJECTS AND CITIZEN PARTICIPATION: THE CHALLENGE OF COORDINATING MEANINGFUL PUBLIC INVOLVEMENT OVER TIME Robert Tuchmann [pages 355–364] Abstract: Consensus to proceed with Boston’s Big Dig Project was only reached after the Commonwealth agreed to perform a long list of mitigation measures to satisfy the objectives of numerous interest groups. To ensure that those measures would be imple- mented and to avoid project-stopping litigation, the Central Artery Environmental Oversight Committee was formed. Its work over the last fourteen years is a unique blend of lawyering and leadership. For the redevelopment of the surface above the downtown portions of the Project, the Mayor’s Central Artery Completion Task Force was created to implement neighborhood task forces to work with park and building designers and to coordinate the neighborhood views with the interests of regional park, transit, tourism, and similar groups. The results of the Task Force’s work over the last six years will soon be seen as the parks and civic structures are built. Article PRIORITIZING MULTIPLE USES ON PUBLIC LANDS AFTER BEAR LODGE Erik B. Bluemel [pages 365–394] Abstract: This Article analyzes the courts’ application of First Amendment juris- prudence to Native American cultural activities on federal land. The author concludes that the courts’ use of existing First Amendment law has been strained, especially with respect to Native American cultural practices on federal land. The Article analyzes Bear Lodge Multiple Use Association v. Babbitt within this context to conclude that First Amend- ment jurisprudence may not be the most appropriate legal construct for determining whether to allow or protect Native American cultural activities on federal land. Instead, the Article suggests that Native American practices are often best considered cultural, rather than religious, and as such, a First Amendment analysis, which has not been particularly favorable to Native American interests, would not apply. Applying a cultural lens to Native American practices, the Article concludes that federal land managers act well within their prescribed authority when they protect such activities. Notes SUBSTANTIVE DUE PROCESS SINCE EASTERN ENTERPRISES, WITH NEW DEFENSES BASED ON LACK OF CAUSATIVE NEXUS: THE SUPERFUND EXAMPLE Philip Jordan [pages 395–420] Abstract: Eastern Enterprises v. Apfel has renewed the relevance of one type of substantive due process reasoning by implicitly ruling that future statutory obligations to pay compensation are tempered by an analysis of the party’s actions and the alleged harm. Though the legal commentary has focused on Eastern Enterprises’s implications for cases involving takings and retroactive liability, the causative nexus analysis adds another dimension to its importance. This analysis is relevant to Superfund actions, particularly when innocent landowners are involved. Courts should address the causative nexus issue when determining liability to ensure that Superfund does not place unconstitutional burdens on private citizens. After Eastern Enterprises, proper substantive due process analysis requires courts to ask why a Potentially Responsible Party is the appropriate party to pay for a cleanup and whether such a burden is in line with this nation’s traditional notions of fairness. PUBLIC AND PRIVATE PROPERTY RIGHTS: REGULATORY AND PHYSICAL TAKINGS AND THE PUBLIC TRUST DOCTRINE Zachary C. Kleinsasser [pages 421–459] Abstract: In Lucas v. South Carolina Coastal Council, the Supreme Court held that, when a regulation has deprived a landowner of all economically beneªcial use, a threshold issue in determining whether compensation is due is whether the landowner’s rights of ownership are conªned by the limitations on the use of land which “inhere in the title itself.” For land that may fall within the public trust doctrine, Lucas’s threshold determination has signiªcant consequences. Because the public trust doctrine is a “background principle,” buyers and sellers of real property may not be able to claim full title, and should be cognizant of the potential application of the doctrine to their land. Further, state and local regulatory bodies should strategically employ the public trust doctrine in environmental protection regulation. Finally, the public trust doctrine’s role in a takings analysis suggests that property rights are perhaps more communal than generally acknowledged, and reveals that it may make sense to evaluate property rights from a community-based perspective. CITIZEN RESISTANCE TO CHEMICAL WEAPONS INCINERATION: CAN NEPA GIVE LOCAL COMMUNITIES LEVERAGE OVER MILITARY ARMS DECOMMISSIONING PROGRAMS? Heather Pierce [pages 459–491] Abstract: Thousands of tons of chemical weapons are currently being stored in eight locations across the United States. Both a congressional act and an international treaty require the U.S. Army to destroy these chemical weapon stockpiles. The Army plans to use on-site incineration to destroy the weapons stored at four of these sites, and it has recently
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