Citizens for Responsible Environmental Management v. Attleboro Mall, Inc.

• Decision Date: 12 August 1987
• Citation: 511 N.E.2d 562,400 Mass. 658
• Parties: , 26 ERC 1691, 18 Envtl. L. Rep. 20,118 CITIZENS FOR RESPONSIBLE ENVIRONMENTAL MANAGEMENT et al 1 v. ATTLEBORO MALL, INC. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 562

511 N.E.2d 562

400 Mass. 658, 26 ERC 1691, 18 Envtl.

L. Rep. 20,118

CITIZENS FOR RESPONSIBLE ENVIRONMENTAL MANAGEMENT et al¹ v. ATTLEBORO MALL, INC. ²

Supreme Judicial Court of Massachusetts,

Suffolk.

Submitted April 8, 1987.

Decided Aug. 12, 1987.

R. Robert Popeo (Michael S. Gardener, Boston, with him) for Attleboro Mall, Inc.

F. Anthony Mooney (Anne E. Renner, Boston, with him) for Citizens for Responsible Environmental Management.

Gregor I. McGregor (Cynthia L. Amara, Boston, with him) for Massachusetts Ass'n of Conservation Commissions.

Peter Shelley and Sarah R. Newbury, Boston, for Conservation Law Foundation of New England et al., amici curiae.

Before HENNESSEY, C.J., and WILKINS, LIACOS, LYNCH and O'CONNOR, JJ.

LIACOS, Justice.

The defendants are Attleboro Mall, Inc. (applicant), which seeks to construct a shopping mall on a site known as Sweeden's Swamp in Attleboro, and the Department of Environmental Quality Engineering (DEQE), which reviewed and approved the applicant's plans pursuant to the Wetlands Protection Act (WPA), G.L. c. 131, § 40. ³ The applicant appeals from an order by a judge of the Superior Court, which nullified DEQE's approval and remanded the matter to the agency for further review. G.L. c. 30A, § 14(1) (1984 ed.). We reverse the judge's order and affirm the ruling by DEQE.

Efforts to build on Sweeden's Swamp began in February, 1979, when a developer known as Mugar Group, Inc./Federated Stores Realty, Inc. (Mugar), filed an environmental notice form with the Executive Office of Environmental Affairs (EOEA). See Massachusetts Environmental Policy Act (MEPA), G.L. c. 30, §§ 61-62H (1984 ed.). In March, Mugar filed with the conservation commission of the city of Attleboro (ACC) a notice of intent to alter wetlands pursuant to the WPA. ⁴ After a public hearing, the ACC authorized construction of Mugar's project in May, 1979. ⁵ A group of ten Attleboro residents then invoked their statutory right to have the commission's action reviewed by DEQE. Later, ownership of the proposed project was transferred from Mugar to Attleboro Mall, Inc., then an affiliate of the Edward J. DeBartolo Corporation (DeBartolo). On April 21, 1982, DEQE's southeast regional office ⁶ issued a superseding order which determined that "[b]ecause of irreparable harm to several interests of the [WPA] the project as proposed is denied." DeBartolo appealed to DEQE's central office in Boston, claiming its right to a formal adjudicatory hearing.

Formal hearings were not held, however, until more than two years had passed. In the interim, in April of 1983, DEQE adopted new regulations (1983 regulations) applicable to the use of "bordering vegetated wetlands," one of the kinds of land the applicant proposed to develop at Sweeden's Swamp. See 310 Code Mass. Regs. § 10.55(2) (1983) (definition of bordering vegetated wetlands). In place of the regulations promulgated in 1978, which had permitted review of such wetlands proposals on a case-by-case basis, DEQE put in force what amounts to a per se rule; with exceptions not relevant here, the new rule prohibits approval of any proposal which results in the loss of more than 5,000 square feet of bordering vegetated wetlands. See 310 Code Mass. Regs. §§ 10.55(3) and (4) (a)-(b) (1983) (prohibitions); 310 Code Mass. Regs. § 10.55(4)(c) (1983) (exception). ⁷

In DEQE's preface to its 1983 regulations, it is stated that "the interests of the [WPA] cannot be protected other than by leaving the existing wetland plant community intact." This is so because "while engineering solutions can protect the statutory interests at stake in most projects located in or near [some kinds of freshwater wetlands], this is not the case with bordering freshwater wetlands. The complex natural functioning of these wetlands cannot be replicated, and no amount of engineering will enable such areas to be filled or substantially altered without seriously impairing the statutory interests they serve."

According to the 1983 regulations themselves, however, the per se rule contained in §§ 10.55(3) and (4) was to "take effect on April 1, 1983," 310 Code Mass. Regs. § 10.10(1), and projects already in the regulatory pipeline were to be "grandfathered" by force of provisions barring application of the new rules "to any Notice of Intent filed prior to the effective date [April 1, 1983]." Id. This grandfather clause guaranteed that "[a]ll proceedings and actions commenced under the Act prior to the effective date" would go forward to the case-by-case review authorized "under the prior applicable regulations [the 1978 rules]." 310 Code Mass. Regs. § 10.10(3).

In December, 1983, DeBartolo conveyed the stock of Attleboro Mall, Inc., to the Newport Galleria Group, an affiliate of the Pyramid Companies of Syracuse, New York (Pyramid); ⁸ and Pyramid (hereafter, applicant) decided to proceed with the adjudicatory hearing originally sought by DeBartolo. ⁹ In May, 1984, it submitted revised plans for development of the mall at Sweeden's Swamp. The changes made were designed primarily to mitigate the adverse impact of the project with respect to the interests protected by the WPA. ¹⁰

On June 22, 1984, DEQE issued a superseding order of conditions in draft form which approved the project as revised. On August 8, 1984, the adjudicatory hearing commenced. Over fourteen days of hearings, the hearing officer considered expert testimony and documentary evidence relevant to the impact of the redesigned project on the following statutory interests: ground water protection, prevention of pollution, protection of drinking water, storm damage prevention, flood control, and protection of fisheries. While the hearings progressed, the applicant responded to criticisms by the plaintiffs' experts by proposing alterations to its plans.

On January 28, 1985, the hearing officer issued a tentative decision, concluding that "[t]he overall concept of this development is consistent with the protection of the interests of the Wetlands Protection Act." The hearing officer found that, while 70% of the water entering this 49.6 acre wetland now "leaves the site untreated" because it passes through by way of three major channels without making contact with the vegetation, ¹¹ the applicant's plan would direct 100% of the entering water into contact with an artificially created 26.3 acre wetland whose herbaceous plants would be at least as efficient at filtration as the existing red maple swamp, and probably more so. In effect, the project as planned would replace a relatively large but inefficient wetland with one smaller in size but "more valuable ... from a pollution attenuation point of view." Because he concluded that the techniques for creating herbaceous wetlands were tested and reliable, he found that "the applicant's plan with regard to wetlands replication is feasible and satisfies the interests of the [A]ct with regard to pollution control."

The hearing officer found that the current suitability of the aquifer for drinking wells was slight, but relevant. Although he found that "use of the proposed parking area will contribute to pollution loading ... and decrease the overall ability of the project to prevent pollution," he concluded that the project's "mall pad" feature "will prevent contaminants from entering the groundwater from the parking lot" and that its design is "sufficient to protect the [statutory interests] in protection of ground water and drinking water, in addition to having a pollution attenuation function." Concerning the related statutory interests in prevention of flooding and storm damage prevention, he found that "no increased flooding will occur on site or off site during a worst case Type II 48 hour 100 year intensity storm, and there will be no increase in peak flow from the site in its developed condition." Concerning the statutory interest in protection of fisheries, the hearing officer found that, despite the regional office's finding of significant fisheries interests at Sweeden's Swamp, subsequent inquiries showed "no significant fisheries on site" nor downstream at Seven Mile River; and that the proposal will have, "if anything, a positive impact on fisheries."

The hearing officer added to the order of conditions a requirement that the mall's environmental function be monitored for at least five years following construction. He also recommended that DEQE retain "jurisdiction to order whatever remedial actions are necessary including measures to limit pollution loading of the wetland and the construction of water treatment facilities."

On March 13, 1985, the commissioner issued his final decision and order of conditions by which he adopted the hearing officer's decision and approved the applicant's revised plans. In response to the plaintiffs' principal legal objection, that the applicant's plans were so altered as to "constitute a new filing" and therefore to require de novo review by the filing of a new notice of intent with the ACC, the commissioner found that (a) remand to the local body would be pointless because the ACC had never sought remand after approving a plan which would have filled "all 50 acres" of the wetlands at issue, and (b) the plaintiffs sought a refiling of the case only to place its review under the new regulations which would prohibit wetland alterations of the size and scope contemplated here. While agreeing with MACC that "public comment on wetlands projects is important," the commissioner saw no need for more public participation than the review process had already afforded. He characterized the revisions as "changes imposed by the Department," and stated that his staff knew of no case in which such changes had caused DEQE to require refiling.

As to the apparent inconsistency between the approval of the applicant's revised plans and the preface to DEQE's 1983 regulations, the commissioner observed that the per se rule in the 1983 regulations was...