Court Halts Plans for Waterfront Black Cow

The state's second-highest court on Wednesday ruled against plans to build a Black Cow restaurant on a city-owned site along the waterfront, saying that the state Department of Environmental Protection must deny the restaurant's permit.

A use for the property, in the Designated Port Area, can be considered only if a "a bona fide industrial use" has not been considered for the site. The DEP improperly discounted Beverly Port Marina's plan for a marina on the site, the Appeals Court ruled.

City Solicitor Roy Gelineau called the ruling a "disappointing surprise" and said city officials are seriously considering an appeal.

The decision was a rarity, Gelineau said, noting courts rarely overturn as administrative decision by a state agency. In this case, the DEP had issued a chapter 91 license to allow the construction of the restaurant along the water.

"The result, if it gets upheld, is that nothing will get built there," Gelineau said.

Beverly Port Marina had filed suit challenging the project. Owner Frank Kinzie said Wednesday he was "very pleased" by the decision.

"It truly demonstrates that the city is not outside the law," he said, saying the three judge panels's decision backs his position that the Designated Port Area designation on the area - which limits the area to martime-based uses - needs to be lifted in order to allow mixed uses such as restaurants and condominiums, which were called for in the city's Master Plan.

If the city government appeals the Appeals Court decision to the Supreme Judicial Court, Kinzie said he will "pursue this until it gets resolved."

Last month, the City Council authorized Mayor Bill Scanlon to sign a 15 year lease, with several options for five year extensions, with Black Cow owner Joe Leone. 

To read the Appeals Court decision in its entirety, see it at the Massachusetts Legal Resources website.