Villages Development Co., Inc. v. Secretary of Executive Office of Environmental Affairs

• Decision Date: 14 May 1991
• Citation: 410 Mass. 100,571 N.E.2d 361
• Parties: The VILLAGES DEVELOPMENT COMPANY, INC. v. SECRETARY OF the EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 361

571 N.E.2d 361

410 Mass. 100

The VILLAGES DEVELOPMENT COMPANY, INC. v. SECRETARY OF the EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS et al. ¹

Supreme Judicial Court of Massachusetts Suffolk.

Argued Jan. 9, 1991.

Decided May 14, 1991.

David L. Klebanoff (James W. Murphy, with him), Boston, for plaintiff.

James R. Milkey, Asst. Atty. Gen., for defendants.

Before LIACOS, C.J., and WILKINS, NOLAN, O'CONNOR and GREANEY, JJ.

GREANEY, Justice.

In this appeal, we are asked to determine whether the plaintiff, The Villages Development Company, Inc. (Villages), may challenge, in the Superior Court, a decision made by the defendant, the Secretary of the Executive Office of Environmental Affairs (Secretary), acting pursuant to the Massachusetts Environmental Policy Act (MEPA), G.L. c. 30, §§ 61-62H (1988 ed.), regarding the scope of an environmental impact report (EIR) that the Secretary required of Villages in connection with a project it is developing in Brewster. A judge of the Superior Court dismissed Villages' amended complaint, concluding that the Superior Court lacked subject matter jurisdiction to decide Villages' challenge to the Secretary's action. Villages appealed, and we transferred the appeal to this court on our own motion. We now reverse the judgment of dismissal.

The material facts in the case are undisputed. Those facts, and other pertinent background on the case, can be summarized as follows. Villages is a private corporation which owns a large tract of land in Brewster. Since 1984, Villages has developed its land into a successful planned unit development and multi-use community known as The Villages at Ocean Edge. At the time of the lawsuit, the project was ninety per cent complete, with 941 of a proposed 1,066 condominium units built over a 379-acre land area. The project also involves recreational facilities, including a public golf course, clubhouse, and tennis courts. The closest major road is Route 6A, and access between the project and Route 6A is currently provided by Thad Ellis Road, a public way in Brewster. This road crosses a widely used bicycle path at grade. Due to dangers resulting from a heavy volume of traffic on the road, Villages and town officials agreed to create a new access road between Route 6A and the project. The controversy underlying this case stems from the new access road.

Because the access road would open onto Route 6A, a State highway, Villages is required to obtain a curb-cut permit from the Department of Public Works (DPW).

Under MEPA, when a private developer applies for a permit from an agency, such as the curb-cut permit sought by Villages, the developer must first file an environmental notification form (ENF) with the Secretary, informing him of the nature of the project. G.L. c. 30, § 62A. The Secretary reviews the ENF and consults with all interested parties to determine whether a comprehensive EIR is required. "If a report is required, the secretary with the cooperation of [the private developer] and [the] agency shall ... limit the scope of the report to those issues which by the nature and location of the project are likely to cause damage to the environment. The secretary shall determine the form, content, level of detail and alternatives required for the report." G.L. c. 30, § 62A. ² See 301 Code Mass.Regs. § 11.06 (1987).

The scope of the EIR must be limited to the part of the project that is within the "subject matter jurisdiction" of the permit. Id. G.L. c. 30, § 62A. Once a final EIR has been approved, and at least sixty days have passed from the date the final EIR was available, the agency may act on the permit application. G.L. c. 30, § 62C. The EIR provides the agency with the information necessary to ensure that "all feasible measures have been taken to avoid or minimize" impact on the environment, as required by MEPA. G.L. c. 30, § 61.

Pursuant to these requirements, in August, 1985, Villages filed an ENF with the Secretary. The Secretary determined that no EIR was required for the DPW curb-cut permit sought by Villages, as long as use of the proposed road was limited to access to and from a sales office and, possibly, a small commercial development in the project. The Secretary notified Villages, however, that expanded use of the access road would require another ENF and further environmental review. DPW issued a limited use curb-cut permit, indicating that the new road could not be used for access to the entire project until all the requirements imposed by the Secretary had been met.

Town officials requested that Villages, in building the new access road, construct a bridge over the bicycle path that runs parallel to Route 6A between the project and that highway. The bicycle path is owned by the Department of Environmental Management (DEM), which is overseen by the Secretary. In order to construct the bridge, it was necessary for Villages to acquire an easement, including "air rights," from DEM, over the bicycle path and across its adjoining sides. In connection with the limited use curb-cut, the Secretary had asserted that Villages' acquisition of an easement from DEM would confer upon him jurisdiction to review all the environmental impacts of the entire Ocean Edge project. In April, 1986, Villages paid DEM $4,125 for the air rights and easement. See St.1985, c. 327 (the emergency law authorizing conveyance of the easement). The access road and bridge were constructed privately by Villages without any financial assistance from the State.

In November, 1986, Villages sought further permission from the DPW to expand its use of the new road to provide access to the entire project, and not merely to its sales office. Following the Secretary's instructions, Villages submitted an ENF for the entire project. On January 23, 1987, after a comment period, the Secretary issued a written decision requiring Villages to prepare an EIR for the entire project, to include within its scope issues of traffic, wetlands, drainage, and subsurface waste disposal impacts. In justifying the extent of his "scoping decision," the Secretary stated that "the DEM land transfer confers MEPA jurisdiction over all aspects of the project." Villages was prevented from obtaining an expanded use curb-cut permit from DPW until it complied with the Secretary's decision.

Villages commenced this action in the Superior Court on March 23, 1987. ³ Its amended complaint sought: (1) a declaration that a regulation relied upon by the Secretary to assert MEPA jurisdiction over the entire project was facially invalid; ⁴ (2) a declaration that the scope of the EIR required under MEPA by the Secretary was too wide-ranging (viz., related to more aspects of Villages' project than were the subject of the curb-cut permit); and (3) an injunction permitting use of the road for full access to the project. Based on the pleadings, uncontroverted exhibits, and the administrative record, Villages moved for summary judgment pursuant to Mass.R.Civ.P. 56(a), 365 Mass. 824 (1974), which was opposed by the Secretary. The summary judgment motion was heard by a judge of the Superior Court, who did not deal with its merits. Rather, relying on Cummings v. Secretary of Envtl. Affairs, 402 Mass. 611, 524 N.E.2d 836 (1988), the judge concluded, sua sponte, that the Secretary's decision was unreviewable, and, therefore, the Superior Court lacked subject matter jurisdiction over the case. Villages' motion for reconsideration was denied, and the judgment of dismissal now under review was entered.

1. Jurisdiction. Whether the Superior Court had subject matter jurisdiction to hear Villages' dispute with the Secretary presents a question of law for this court to decide. Cummings, supra at 614, 524 N.E.2d 836.

In its amended complaint, Villages relied on the provisions of MEPA, G.L. c. 30A, § 7, and G.L. c. 231A to challenge the Secretary's action. Fairly read, the amended complaint asserted that:

(a) MEPA granted the Secretary jurisdiction over a project only when a State agency either financially assisted or sponsored the project;

(b) if the only contact between an owner and a State agency involved the issuance of a permit, then the Secretary's jurisdiction was expressly limited to that part of the project that fell within the subject matter jurisdiction of the permit;

(c) the DEM easement did not involve State financial assistance or sponsorship of Villages' project, and the easement was not a permit, therefore the Secretary had no basis to claim jurisdiction over the entire project for the purpose of requiring a comprehensive EIR;

(d) if the easement was found to be a permit, its grant by DEM did not confer on the Secretary MEPA jurisdiction over the entire project; and

(e) the regulation relied upon by the Secretary to justify his scoping decision was facially invalid, and, if valid, could not properly have been relied upon by the Secretary to confer broad scope jurisdiction.

As has been stated, the amended complaint went on to request declaratory and injunctive relief either to set aside or limit the Secretary's decision and to allow Villages full use of its access road.

We are satisfied, in the circumstances of this case, that the Superior Court had subject matter jurisdiction under G.L. c. 231A, to decide all issues raised by Villages' complaint. Section 2 of G.L. c. 231A provides that declaratory relief can be obtained "to secure determinations of right, duty, status or other legal relations under ... a ... statute ... or administrative regulation, including determination of any question of construction or validity thereof which may be involved in such determination." It is settled that such relief is available to challenge the legality of administrative action even though the action concerns neither adjudication nor rule making. See Westland Hous. Corp. v. Commissioner of Ins., 352 Mass. 374, 383, 225 N.E.2d 782 (1967); South Shore Nat'l Bank v. Board of Bank Incorporation, 351...