Nutter recently filed an amicus brief on behalf of NAIOP Massachusetts, The Commercial Real Estate Development Association, in the case of Armstrong et. al. vs. Theoharides et. al. The amicus brief urged the Supreme Judicial Court to overturn the Superior Court’s decision, which sided with the plaintiffs in the case and invalidated the portion of the Chapter 91 Waterways Regulations applicable to projects in areas covered by a municipal harbor plan.

NAIOP chose to pursue this opportunity because of concern that the lower court’s decision in this case will, if allowed to stand, chill the development of commercial, industrial, and residential projects statewide by creating unpredictability in the harbor planning process for existing and future projects in coastal communities across the Commonwealth. 

“We are grateful to the incredible team at Nutter for their work,” said Tamara Small, CEO of NAIOP Massachusetts. “If allowed to stand, the lower court’s decision will call into question every municipal harbor plan issued in the Commonwealth, which will have massive ramifications for those communities, as well as the projects that have long been built. This decision impacts municipal harbor plans throughout Massachusetts that have gone through years of public review. Unless the Superior Court’s decision is overturned, the validity of these plans is called into question, eliminating predictability and certainty for the development industry and these communities.”

“The Superior Court’s decision in Armstrong upends a long-settled regulatory scheme in a manner which constrains the vital role municipalities, local residents and other stakeholders play in the licensing process in coastal areas,” said Attorney Sarah Turano-Flores of Nutter. “In the thirty years since they were first promulgated, the harbor-specific provisions invalidated by the Superior Court have provided a locally informed regulatory framework for the permitting and construction of millions of square feet of residential and commercial developments and delivered significant public benefits throughout the Commonwealth, including much needed local housing, open space and crucial coastal resiliency measures. We hope the SJC in its review will determine that MassDEP acted within its authority in promulgating these regulations, and in doing so, reverses the lower court’s decision.”

The Nutter team involved in the matter was led by Sarah Turano-Flores, and included Michael Leon, Mary Marshall, Valerie Moore and Matthew Snell.

Oral arguments will be held Monday, March 7.