After Mayor Bill Scanlon's State of the City address Monday night, City Council President Paul Guanci asked the question that residents have been asking since 2006.
What's up with the Black Cow?
Guanci was not talking about farm animals or the 1977 Steely Dan song. He was talking about the Black Cow restaurant that was first proposed six years ago this month but has yet to be built.
Scanlon, as he has done many times, pointed out that the plans are being held up by the "direct abutters" — Beverly Port Marina owners Frank and Susan Kinzie — who have appealed the project's license in Superior Court.
"We will continue to pursue this project to a successful conclusion," Scanlon said in his speech.
The talk of delays and appeals elicits groans and eye-rolling from supporters of a restaurant, which would be located on city-owned land near the Beverly-Salem Bridge where a former McDonald's now stands, and would become Beverly's only waterfront restaurant.
The acrimony between the city and the Kinzies, who have battled for years over public access to the waterfront and permitting of the marina's boat slips, has been well-chronicled. But the details of the Black Cow legal battle are so arcane that they rarely come up in public.
A look at the Massachusetts Department of Environmental Protection's 44-page "final decision" on the matter, and the Kinzies' 12-page appeal of that decision, shows how even officials at DEP — which has jurisdiction because the restaurant would be located on filled tidelands — have struggled with a case they say is the first of its kind.
The case is complicated because the area in question — known as Glover's Wharf after John Glover, who launched the U.S. Navy's first ship, the Hannah, from the site — is governed by two separate, and often conflicting, sets of state regulations.
First, it is one of the state's 12 "designated port areas," or DPA's, which were established in 1978 in an effort to protect and promote working waterfronts. The designation restricts developments in those harbors to "water-dependent industrial uses" such as marine terminals, water transportation, commercial fishing and boatyards, and "supporting uses," including restaurants.
To make matters more complicated, the land must also be used for recreational purposes, because the city used a state conservation grant to help buy the property in 1995.
The city says its plan satisfies the DPA requirements because it includes a commercial passenger boat operation on the first floor of the restaurant as well as six parking spaces for port users. It says it meets the recreational requirements by allowing public access on the ground floor and second-floor deck of the proposed building, and by demolishing a city marina building to create more open space.
That plan might have won DEP approval when it was submitted in 2008, except for a never-before-used provision in the regulations regarding designated port areas. That provision allows someone to submit a "competing proposal" that might better promote water-dependent uses.
In December 2008, the Kinzies filed their competing proposal, the first time anyone had ever done so under the DPA rules.
The Kinzies' plan calls for them to lease the land from the city, for $60,000 per year, and use it for boat repair and storage, a charter boat service, commercial fishing, and a 215-foot commercial research vessel. They said that plan is more suited for a working waterfront than a restaurant.
The novelty of a competing proposal apparently flummoxed the DEP. At first it would not even consider Port Marina's proposal. Then it said it would. Then it said that Port Marina's plan was better suited for a port area than the city's. Then it changed its mind again and backed the restaurant.
That "recommended final decision" in favor of the Black Cow was made by Pamela Harvey, a presiding officer in the DEP's Office of Appeals and Dispute Resolution. In her ruling, Harvey said the Kinzies' boatyard plan is more appropriate for a port area, but that they failed to provide evidence that it would meet the recreational requirements of the 1995 grant.
"If a competing proposal, even where it provides superior water-dependent industrial use of a site, is not feasible for other reasons, it has to potential to create a stalemate where neither project is built and the DPA site remains vacant," Harvey wrote.
The Kinzies appealed Harvey's ruling, but it was denied by DEP Commissioner Kenneth Kimmell. The Kinzies then appealed that decision to Superior Court, where it is pending.
The saga might not end there. The loser of that decision can always appeal to the Appeals Court.
Staff writer Paul Leighton can be reached at 978-338-2675 or by e-mail at pleighton@salemnews.com.
Black Cow Time Line
February 2006 — Black Cow restaurant owner Joseph Leone proposes restaurant for Beverly waterfront
October 2008 — City applies for state waterways license to allow restaurant
December 2008 — Beverly Port Marina submits "competing proposal," calling for a boatyard on the site
March 2010 — DEP approves restaurant plan, rejects Port Marina proposal
September 2010 — DEP reverses decision, approving Port Marina's plan
June 2011 — DEP again reverses decision, saying Port Marina's plan is not "feasible"
June 2011 — DEP Commissioner Kenneth Kimmell issues "final decision," approving license for restaurant
October 2011 — Kimmell upholds his decision to approve restaurant
November 2011 — Port Marina files appeal in Superior Court, where case is pending
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