The waye we almost weren't

By Rob Marino
Friday, May 30, 2003

Newburyport's past reveals that historic restoration and public waterfront access weren't always the 'waye' of thinking

Imagine Market Landing Park as a Wal-Mart, Target or other big-box store.

Not in the too distant past, a large commercial business in the downtown waterfront area was an appealing notion. As the number of manufacturing and industrial businesses along the waterfront declined in the 1950s, frustrated merchants decided something had to be done to turn around the economic slump plaguing downtown Newburyport. "Two-for-one" sales were proving an ineffective weapon for boosting the revenue stream.

"Their hope was to attract a Sears or a Zayre's," recalls Bill Harris. "They thought if they could attract a magnet business, they would be able to revive downtown."

Following proposals for urban renewal in a citywide election campaign in 1959, the Newburyport Redevelopment Authority (NRA) was incorporated in 1960 to oversee the renewal process. However, the NRA and the city would soon discover there's no express lane on the road to urban renewal. Restoring historic buildings in the downtown and providing public access along the central waterfront would ultimately prevail in the city's revitalization process, but not without one hell of a fight.

"During the early 1960s, a typical renewal project was envisioned as the Central Business Project which proposed the wholesale clearance of the Market Square and the adjacent waterfront of the Merrimack River," wrote Paul McGinley, former NRA executive director, in a 1971 report titled "Newburyport and a New Kind of Urban Renewal."

Many residents, like Joan Purinton, weren't exactly thrilled with the NRA's original plan to tear down virtually all of the buildings in the downtown waterfront area. "The initial urban renewal plan was for total demolition of the Market Square area," Purinton says. "It was all to be replaced by parking lots and strip mall type structures."

At the same time in the early 1960s, the Newburyport Art Association embarked on a campaign in which local artists painted the city's historic architecture, thus spurring historic rehabilitation as a component of the Newburyport urban renewal plan. In 1964, the Historical Society of Old Newbury formed a committee, headed by Dr. Robert Wilkins, aimed at saving the downtown's historic buildings. Wilkins was appointed to the NRA in 1966.

The National Trust for Historic Preservation in Washington, D.C., did not support the committee's plan, which proposed to save over five acres in the State Street and Market Square area, because it did not include saving historic buildings in the remaining 14-plus acres of the NRA project area.

"The historic property loss was too great for them to endorse it," Harris says.

While the committee was focused on "monumental preservation" in hopes of saving downtown historic buildings and symbols of New England's maritime past from demolition, Harris says a younger group of people started an environmental movement, aimed at extending the depth of preservation a lot further.

"They just didn't want to save the key architectural buildings, they wanted to preserve the townscape, and that meant the buildings, the streets and the openings to the waterfront so that Newburyport remained a historic seaport," Harris says.

"Many of the NRA members, including Wilkins, found it frustrating since they had made a deal to save what they considered the most historic buildings. They didn't understand why a generation of younger people wanted to save less important buildings and traditional public wayes that would make it impossible to build large modern office buildings."

With the committee's plan scrapped, the NRA moved forward with its demolition-only plan, getting approval in 1964 from the Federal Housing and Home Loan Authority, the predecessor to the U.S. Department of Housing and Urban Development (HUD). The plan, however, did exempt the Custom House and Unitarian Church from demolition.

Shocked into awareness

It wasn't until 1968 that eminent domain proceedings got under way and that demolition started on many of the historic structures in the urban renewal project area.

"In 1968, there was a very stubborn indifference to historic restoration," Purinton says. "They said there wouldn't be any developers interested in restoration and that it wasn't cost effective. At that time, it was thought to be economically infeasible to restore downtown buildings. They wanted to go with the flow and destroy the downtown."

"Several law firms tried to buy up the buildings, but they couldn't," Harris says. "They were told that the buildings were going to be destroyed."

"I couldn't believe that people were destroying historic structures, but that was the thinking at the time," Purinton says. "It was a wake-up call to everyone. The frustration of Newburyport citizens began to flow because they realized that it was a heritage that would never come back again."

Community members urged the NRA for a project change to include the rehabilitation of the downtown's historic buildings. Conceding to the urgency raised by the community, the NRA incorporated the rehabilitation component into the urban renewal plan "at the last minute," Purinton says, in which changes were made to project documents going out to bid. While the changes in the documentation were deemed only minor by HUD, they would set the future of Newburyport's downtown waterfront area on a much different course.

"In May 1969, the Redevelopment Authority took formal action to preserve Market Square and initiated the replanning of the project to rehabilitate the historic structures," wrote McGinley. "Although a major portion of the project area is composed of historic buildings, another important area is a large tract of cleared land along the Merrimack River. Plans for this area call for a restaurant, motel, marina and related commercial uses with a new road running along the waterfront."

According to McGinley, a public hearing was proposed for the "new plan" in March 1970. City and state approvals were obtained and an application was submitted to HUD for funding. The NRA also got approval from HUD to seek informal bids for the rehabilitation of historic buildings in the downtown waterfront area.

"They had to go out to bid on the project to find out if anybody really wanted to do it," Purinton says, adding a group of interested citizens and entrepreneurs pooled money together and hired a local real estate developer and well respected architect to put together a feasible restoration plan. Known as the Phoenix Group, the collaboration's effort certainly did not go unnoticed; they were the only group to file a rehabilitation plan - just minutes before the deadline for informal bids arrived in March 1969.

"That changed the tides," Purinton says, a member of the Friends of the Newburyport Waterfront group, which has since effectively disbanded. "It was said in the paper that the Phoenix Group was a patch of blue sky. They basically saved the downtown from being demolished, but that was just the beginning of the struggle."

Condo Waye

Before the NRA agreed to include the rehabilitation component into the urban renewal plan, the National Historic Preservation Act was established in October of 1966. With the passage of the act, HUD required that Market Square be listed on the National Register of Historic Places in order for the project to qualify for a federal grant to rehabilitate the historic downtown buildings. On Feb. 25, 1971, the National Park Service approved the listing of Market Square Historic District on the National Register of Historic Places. On March 5, 1971, HUD appropriated all funding requested for the restoration and rehabilitation of project area properties.

The project seemed to be on a favorable track, but when the outcome of NRA's formal bid process was revealed, the situation quickly turned unfavorable once again. On May 1, 1972, the NRA announced its selection of the Hunneman Development Corporation to build condominiums on the waterfront, a plan that Purinton says was the worst of all the proposals that were submitted.

"They proposed to build a row of condos along the waterfront, and where there was a view between the condos, they positioned a second row of condos that would block the view from Merrimack and Water streets," Harris says. "It would have destroyed the connection between the Merrimack River and the downtown, which made Newburyport an historic seaport."

Two days after the condominium plan was unveiled, the Friends of the Newburyport Waterfront was established as a nonprofit organization devoted to protecting public easements along the waterfront, as well as supporting redevelopment that is consistent with historic preservation goals. A graduate of Harvard Law School, Harris was instrumental in establishing the Friends group and would later represent the organization pro-bono, along with attorney Bob Wolfe, in lawsuits involving the waterfront.

"The urban renewal agency had taken all of the land by eminent domain," Harris says about the NRA. "My job was to figure out how we could preserve the townscape despite their eminent domain power. There was also state and federal power - and money - behind the NRA."

With the National Environmental Policy Act (NEPA) established on Jan. 1, 1970, the Friends group and Harris asked that an environmental impact report be conducted for the waterfront property.

"We were one of the first NEPA cases in New England," Harris says. "We wanted them to review the wayes and how they were important to the Market Square Historic District. We thought if there was a solid environmental impact report, it would lead to a change to the plan and allow new construction that was compatible with the historic district."

White House connection

However, Harris says former Mayor Byron Matthews supported the project and pulled some high-ranking strings to ensure the project would move forward. Matthews was the vice- chairman of Massachusetts Citizens for Nixon-Agnew during the 1972 election campaign. Coincidentally, only Massachusetts and Washington, D.C., didn't support President Richard Nixon and Vice President Spiro Agnew that election year.

Harris says Matthews contacted Agnew and obtained a commitment that HUD would not do anything to slow down the urban renewal project. Agnew then called the assistant secretary of HUD at the time, who then refused the Friends' request to conduct an environmental impact report, Harris says, which should have been done under the law.

"The next point is that a senior official at HUD in Boston told me that the Friends of the Newburyport Waterfront would have to sue HUD to protect the wayes to the water and to get an environmental impact report because of White House intervention," Harris says. "I said we shouldn't have to sue, because if they did a thorough environmental impact report, then they would see that they could still have the development, yet protect the wayes and the connection to the waterfront."

The Friends group also contested a proposed 240-ft.-long concrete office building on Merrimack Street as part of the urban renewal plan on land referred to as Parcel 8. The Massachusetts Historical Commission was asked to review the project and rule it incompatible with the Market Square Historic District. However, the commission "decided that we had to live with it," Harris says, prompting the lawyer and the Friends group to call on the Advisory Council on Historic Preservation, the highest-ranking preservation authority in the country, to hear the case.

Following a preliminary determination, the full council's review of the proposed construction at Parcel 8 began in September 1972. The city and the NRA were notified by HUD to stop all new construction at Parcel 8 while the advisory council reviewed the case, Harris says. However, that didn't happen. In October 1972, with permission of the NRA, excavation began at Parcel 8, in which fill was dumped on the tidelands site and public wayes. In response, a civil case was filed in U.S. District Court the same month in which the "Committee of Civic Rights of the Friends of the Newburyport Waterfront" sued the city, the NRA and George Romney, the father of current Gov. Mitt Romney, who was the HUD secretary at the time.

Can you dig it?

Following a long public hearing in Washington D.C., the advisory council on Nov. 15, 1972, unanimously agreed that the proposed new construction was incompatible with the Market Square Historic District. In January 1973, HUD stated in a letter to NRA that "your authority should, with expert counsel, review the prospects for productive archeological investigations, and, if appropriate, make the waterfront area available for such archeological investigations as (they) may be of interest to experts."

However, in July 1973, the NRA was still supervising the additional moving of top soil and dumping of construction debris on the tidelands. A month later as a result of the civil lawsuit filed the previous October, a U.S. District Court judge issued a permanent injunction against all new construction and interference with the public wayes within the project area, pending the completion of an environmental impact statement for the urban renewal project.

In 1974, the environmental consultant selected by HUD and recommended by the NRA indicated in the draft environmental impact statement that there were rich archeological resources in the project area, particularly under the public wayes connecting to the waterfront. However, NRA members weren't too keen on pursuing an archeological dig, and it looks as though HUD was right behind them.

"What HUD did was they had a public hearing in Newburyport where they were praised by the public for noting the rich archeological resources," Harris says. "Then, in an accent of cleverness, they deleted all references to archeological resources from the environmental impact report."

Despite the request of the Friends group to restore the archeological references in the draft environmental impact statement, HUD maintained in its final June 1975 impact statement that the urban renewal project would not adversely affect archeological resources. With the references to archeological resources also omitted in the final environmental impact statement, the Friends group would ultimately find themselves back in court that year, seeking continued injunctive protection as well as revisions to the final impact statement and explicit treatment of archeological alternatives for the urban renewal project.

In September 1976, an assistant U.S. attorney motioned to dismiss the suit. However, with the Friends group alleging 13 per se violations of law and a deficient environmental impact statement, the judge hearing the case told the attorney that any one of those alleged violations could compel a ruling in favor of the Friends.

Harris says the judge urged the parties involved to continue settlement negotiations, telling the defense counsel that if he had to make a ruling that day, he would not rule in favor of the defendants.

In January 1977, the same judge approved a settlement agreement among the Friends group, NRA and HUD. "The NRA agreed to do an archeological survey of the waterfront, and they agreed to start court proceedings to ascertain whether there were continuing public rights from the water and to the water," Harris says.

"The question was whether there were any public wayes that remained. The Friends were arguing that these traditional wayes were in existence since 1780, when the Massachusetts Constitution protected pre-existing property rights. We argued that eminent domain rights couldn't destroy public rights, because they were protected by the Constitution and the Public Trust Doctrine."

However, the Land Court judge hearing the case was skeptical. "The judge indicated that if he were to rule in our favor, it might jeopardize $5 billion worth of waterfront property rights," Harris says.

The judge was so concerned that he actually did an inspection of the wayes to the waterfront. Photographs of the judge in his robe inspecting the wayes was used as evidence in court.

"He was upset but he allowed the evidence," Harris recalls, adding the judge ruled that the wayes had been discontinued by abandonment. The judge's unfavorable ruling prompted an appeal to the Massachusetts Court of Appeals, which essentially rejected the Land Court judge's ruling.

"The Massachusetts Court of Appeals found that all of the land was held in public trust," Harris says of the early 1980 decision. "They found that most of the specific wayes could be abandoned, but public access would be required under the Public Trust Doctrine."

Outnumbered

Harris says the ruling resulted in a settlement in which the NRA conveyed six (actually five) of the 11 waterfront wayes to the city for public access. However, it wasn't until the early 1990s that the conveyance actually transpired. In addition to the wayes, the agreement also included language for the establishment of a waterfront trust, which was officially formed in 1991.

"We just wanted it to be compatible," Harris says about the waterfront plans. "At the time of our lawsuit in 1972, the majority of the Friends favored new construction at and along the waterfront but with access to public wayes. We were never trying to stop construction on the waterfront, but we effectively did that when we filed that injunction.

"More recently, a younger generation of Newburyporters concluded that no construction was better than building on the waterfront. Today, a large portion of residents don't favor any construction. Just as it was a change in view between Dr. Wilkins and the Friends, there was a change between what we wanted in the 70s and 80s and what Newburyporters want now," Harris says.

"We were just outnumbered," Bob Wolfe recalls of the long battle. "Now, they're outnumbered. All we did was give people the chance to do the right thing."

Following their legal work on Newburyport's waterfront, Wolfe and Harris would go on to do consulting work across the country on public waterfront access issues. "We created good law that is useful in other contexts," Wolfe says about the Newburyport waterfront battle.

"If you look back, Newburyport's waterfront before the 1970s was the subject of five different lawsuits going back to the early 1800s," he says. "Newburyport has been the battleground for public access to the water for many, many generations.

"I would say the difference with this litigation in comparison to prior litigation was that our legal theories were a little bit different and have become much more popular," Wolfe says. "By way of example, the Newburyport case involving the public trust was actually filed before the Boston waterfront case, which in many ways turned around Boston Harbor and the waterfront. One of the goals of the Boston Redevelopment Authority was a continuous walkway or public access around Boston Harbor and that came out of the Boston waterfront case, which came after the Newburyport case."

Just as Newburyport was one of the first in the country to initiate restoration of historic buildings within an historic district using urban renewal funds, Wolfe says the city also had the first successful case in the country to require an archeological dig under the Archeological and Historic Preservation Act of 1974. Newburyport's 1977 dig recovered over 20,000 historic artifacts and "five stone projectile points" dating from the Archaic period spanning 1500 B.C. to 5200 B.C.

"We found evidence of habitability and evidence of location to the wayes to the water, but everybody knew that they were there anyway," Wolfe says.

It's hard to believe looking at Market Square today that just a few short decades ago, many folks believed that preserving the historic downtown wasn't a worthy investment.

"Because of the restoration and rehabilitation, the values of the properties are sufficient to support historic preservation," Wolfe says. "If you've got a $1 million Federalist mansion, you're not going to tear it down to build a new home, but that was not always true.

"The older buildings have an economic justification for existence, and basically that's what historic preservation is supposed to do," Wolfe says. "We're supposed to preserve the past in such a way that the past will ultimately preserve itself."