SalemNews.com, Salem, MA

March 7, 2014

Beverly loses legal fight over Black Cow

High court refuses to take case; waterfront restaurant on hold

BY PAUL LEIGHTON
STAFF WRITER

---- — BEVERLY — The state’s highest court has denied the city’s request to hear the Black Cow case, ending a long legal battle over the proposed waterfront restaurant with a resounding defeat for the city.

The decision vacates two state licenses required for the restaurant to be built and forces the city to find another way to redevelop its vacant waterfront land.

“The ruling really kind of closes this chapter,” said Mayor Mike Cahill, who inherited the case from the administration of former Mayor Bill Scanlon. “Now we’re back to the drawing board. We still very much want a restaurant there and public access and enjoyment, but we’ll have to get back to square one to try to work through it.”

The city’s appeal to the Massachusetts Supreme Judicial Court was its last chance to win a grueling legal fight with Beverly Port Marina, the business next door to the proposed restaurant.

Port Marina owner Frank Kinzie said he is not opposed to a restaurant, but said the city was trying to circumvent rules for developing the waterfront that apply to other property owners in the area.

“Obviously I’m pleased with the decision,” Kinzie said. “The project from the beginning was, I think, done in the wrong way. It was a tremendous waste of both time and money for the city and ourselves.”

The long-running saga began in 2006 when the city requested proposals to lease city-owned land on the waterfront next to the Veterans Memorial Bridge, where a McDonald’s restaurant building has sat mostly unused since it closed in 1994.

Joseph Leone, who owns Black Cow restaurants in Hamilton and Newburyport, submitted the only bid, a proposal to build another Black Cow. In 2010, the state Department of Environmental Protection granted two licenses needed for the project to go forward.

The Kinzies appealed the granting of the licenses. A Superior Court judge ruled in the city’s favor in 2012, but the state Appeals Court overturned that decision on Dec. 11, 2013. At that point, the city applied to the Supreme Judicial Court to take up the case. Last week, the high court issued a one-line ruling denying the application without comment.

Cahill said the ruling voids a 40-year lease the city signed with Leone in December. Cahill said the city will likely issue another request for proposals after making changes to the designated port area, the state classification that limits the kind of development that can be done on the waterfront.

Cahill said he met with state Energy and Environmental Affairs Secretary Richard Sullivan on Wednesday and is planning to meet with officials from the Office of Coastal Zone Management to discuss changing the designated port area.

“My hope all along is that we’ll have a productive waterfront within a reasonable period of time, with restaurants, shops, more boat slips and meaningful public access,” Cahill said.

Leone said he was “very disappointed” and surprised by the court’s decision but remains optimistic that he can still build a Black Cow restaurant on the site. He said he is scheduled to meet with Cahill on Monday.

“He sounds very positive about having a restaurant on the waterfront, and that’s all I can hope for,” Leone said. “I hope I’m the restaurant. I’ve put a lot of time and effort into this. I’d be very disappointed if it was taken away from me after all my hard work.”

The Kinzies’ legal argument hinged on the waterfront’s classification as one of the state’s designated port areas. State laws governing such areas require that they be developed with “water dependent” uses. The rules also allow for someone to file a competing proposal that must be considered if it is more in line with a working waterfront.

The Kinzies filed a competing proposal, the first one in the 36-year history of the state’s DPA regulations, that called for a boatyard on the site.

The Department of Environmental Protection, which has permitting jurisdiction over the land, went back and forth on the competing proposal before finally rejecting it. That decision sparked the Kinzies’ legal challenge, which ultimately paid off in the Appeals Court ruling that the DEP failed to properly consider the competing proposal.

The court’s decision does not mean the city has to accept the Kinzies’ boatyard proposal, but it does mean the restaurant plan cannot go forward.

Kinzie said the city should have revised the port area rules long ago. He said lifting the regulations will allow for the type of mixed-use development, including stores and restaurants, that residents want on the waterfront.

Kinzie floated a plan 10 years ago to put shops and restaurants on his Port Marina property and said he would revisit those ideas if the waterfront regulations are changed.

Kinzie often fought with the Scanlon administration over the restaurant project and issues such as public access on the waterfront and the location of boat slips. Kinzie supported Cahill, who has been open to revising the port area designation, in last year’s election.

“I’m optimistic,” Kinzie said, “that with a new administration and a new City Council, it’s going to be an era of forward progress on the waterfront, rather than continued battling.”

Staff writer Paul Leighton can be reached at 978-338-2675 or pleighton@salemnews.com.