The hang-up is caused by the fact that the land is subject to restrictions under two different sets of rules. As one of the state’s 11 designated port areas, the land must be used for something dependent on the water. But because the city used a state Division of Conservation Services grant to buy the property in 1996, it must also be used for conservation and recreational purposes.
The designated port area regulations allow someone to submit a “competing proposal” for the land. If the proposal is determined to be a better use of the waterfront, the DEP must reject the lesser proposal.
The DEP at first ruled that Beverly Port Marina’s boatyard plan was a better use of waterfront land. But the agency later rejected the proposal, saying Port Marina did not show that its project would also meet the recreational requirements stipulated under the state grant used to buy the property.
A Superior Court judge upheld that decision, but the Appeals Court panel said the DEP does not have the “jurisdiction or expertise” to decide if Port Marina’s project would meet the requirements of another agency.
That ruling has left the restaurant plan in limbo, as it has been since Leone first submitted his proposal to the city in 2006.
Cahill said he does not know when the Supreme Judicial Court will decide whether it will consider the city’s appeal.
If it doesn’t, one of the city’s options is to modify or eliminate the designated port area status that is restricting what can be built there, as other communities have done.
“We’re looking at what’s possible with that,” Cahill said.
Staff writer Paul Leighton can be reached at 978-338-2675 or firstname.lastname@example.org.