Marlow v. City of New Bedford

• Decision Date: 09 January 1976
• Parties: Sandra MARLOW et al. v. CITY OF NEW BEDFORD et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 494

340 N.E.2d 494

369 Mass. 501

Sandra MARLOW et al.

v. CITY OF NEW BEDFORD et al.

Supreme Judicial Court of Massachusetts, Bristol.

Argued Sept. 17, 1975.

Decided Jan. 9, 1976.

Martin A. Lipman, New Bedford, for plaintiffs.

Richard J. Moore, Asst. City Sol. (Francis V. Matera, Boston, with him), for the City of New Bedford.

Leo S. McNamara, Asst. Atty. Gen., for the Dept. of Public Works.

Before TAURO, C.J., and REARDON, BRAUCHER, HENNESSEY, KAPLAN and WILKINS, JJ.

TAURO, Chief Justice.

The plaintiffs, residents of New Bedford, brought this suit pursuant to G.L. c. 214, § 10A, ¹ to enjoin continuation of work on a project to widen County Street in New Bedford (the Project). In their complaint, as amended, the plaintiffs alleged that the defendants ² had failed to comply with certain provisions of the Massachusetts Environmental Policy Act (MEPA), G.L. c. 30, § 62 (inserted by St.1972, c. 781, § 2), and regulations of the Executive Office of Transportation and Construction (EOTC) which require that certain instrumentalities of the Commonwealth file an environmental impact report (EIR) prior to commencement of projects which may cause damage to the environment. The central issues are whether, in fact, the Project had commenced prior to the effective date of the statute and whether the environmental impact was 'insignificant.' After a trial on the merits, the trial judge filed findings of fact and rulings of law resolving both issues in favor of the defendants and ordered entry of judgment for the defendants. The plaintiffs appealed. The case is before us on allowance of the plaintiffs' application for direct appellate review. We affirm.

1. The Factual Context. We summarize the relevant facts, drawn from the judge's findings, the stipulation of parties, and other aspects of the record.

County Street is a major north-south traffic artery for the city of New Bedford. Its sidewalks are wide, and its roadway for vehicular traffic is relatively narrow. Thirty-one shade trees, primarily maple and elm, line the street. ³ According to testimony given at trial, the buildings on County Street and the uses to which they are put are varied. There is one section which is the location for many fine old mansions with grounds, preserved as they were in the nineteenth century, and owned for the most part by public and charitable institutions and professional people. A part of this area falls within the West End Terminal Area of the New Bedford Redevelopment Authority (NBRA). Although the New Bedford Historial Commission, established pursuant to G.L. c. 40C, has never officially designated any portion of County Street an 'historic district,' the judge found on ample evidence that 'much of County Street,' presumably referring to the area of mansions and grounds to which testimony regarding historical significance was directed at trial, is 'of historical significance.' ⁴

The Project will straighten and widen the roadway of County Street, narrow the sidewalks, and remove the shade trees. Although witnesses testified that the roadway construction would improve traffic safety, diminish congestion, and alleviate pollution from automobiles traversing County Street, New Bedford's principal concern in undertaking the roadway portion of the Project seems to have been to obtain funding for a storm drain system beneath County Street. At present, storm water and sewage flow through the same pipes beneath County Street. The storm drain system will separate storm water from sewage and alleviate a flooding problem. Construction of the storm drain system was a condition to the Federal funding for the New Bedford sewage disposal facility. However, New Bedford was unwilling to finance fully the construction of the storm drain system on its own and wanted the Commonwealth to absorb part of the cost of the system. The Commonwealth would not contribute funds to a storm drain project alone and would finance construction of storm drains only in connection with construction or reconstruction of County Street. To obtain finding, New Bedford accepted the so called 'Chapter 90' project, G.L. c. 90, § 34, under the auspices of the Massachusetts Department of Public Works (DPW). ⁵

2. Statutory Provisions and Regulations. ⁶ MEPA consists of two complementary sections. General Laws c. 30, § 61, establishes an official policy of environmental protection in the Commonwealth and requires that various enumerated categories of State instrumentalities use 'all practicable means and measures to minimize damage to the environment.' General Laws c. 30, § 62, prescribes a procedure for thorough consideration of potential environmental impact through preparation of a draft and a final EIR and through submissions of these EIR's to interested State agencies and the public. Specifically, G.L. c. 30, § 62, provides that '(n)o agency, department, board, commission, or authority of the commonwealth or any authority of any political subdivision thereof shall commence any work, project, or activity which may cause damage to the environment until sixty days after it has published a final environmental impact report . . . or until sixty days after a public hearing on said report . . ..' The final EIR supplies the data for the required § 61 determination that the project, as planned, minimizes damage to the environment and for evaluation of the determination by a reviewing court. Secretary of Environmental Affairs v. Mssachusetts Port Authority, --- Mass. ---, ---, ^a 323 N.E.2d 329 (1975). Boston v. Massachusetts Port Authority, --- Mass. ---, ---, ^b 308 N.E.2d 488 (1974). However, because the effective dates of §§ 61 and 62 are staggered, ⁷ § 62 may not be applicable to some projects governed by § 61. If a project commenced prior to July 1, 1973, § 62 is inapplicable and no EIR is required. Secretary of Environmental Affairs v. Massachusetts Port Authority, supra at ---, ^c 323 N.E.2d 329. Similarly, § 62 is inapplicable and no EIR is required where damage to the environment which may be expected to result from a particular project is 'insignificant.' G.L. c. 30, § 61.

In furtherance of the statutory scheme, G.L. c. 30, § 62, directs that 'the secretaries of the executive offices shall each promulgate rules and regulations approved by the secretary of environmental affairs to carry out the purposes of this section . . . and which shall conform with the requirements of the National Environmental Policy Act Pub. Law 91--190, and amendments thereto.' Pursuant to that authority, the secretary of the Executive Office of Environmental Affairs (EOEA) published regulations, but these do 'not apply to projects which have commenced before July 1, 1973.' ⁸ EOEA Reg. 13 sets general guidelines for deciding when a project 'shall be deemed to have commenced,' and also provides that the secretaries of the executive offices shall, with the approval of the secretary of EOEA, 'further define the word 'commenced' . . . by . . . regulations' which 'shall specifically identify a uniform phase or point, the completion or attainment of which commits the agency to the ultimate completion of a specifically planned activity.' The secretary of EOTC has promulgated regulations which govern the DPW and which enumerate criteria for use in determining whether a given activity has 'commenced.' ⁹

3. Findings and Rulings of the Trial Judge; Contentions of the Plaintiffs. There were two distinct, alternative grounds for the trial judge's order for entry of judgment for the defendants and implicit ruling that no EIR was required for the Project: (1) The judge ruled that, 'in view of the environmental advantage,' i.e., improved sewage treatment, to be derived from the Project, any environmental harm from the Project 'must be deemed 'insignificant." (2) After a review of the relevant part of the Project's chronology, the judge concluded that '(a)ll that remained to be accomplished after July 1, 1973, was to put the plans and specifications out for bid by private contractors.' Therefore, the judge ruled that the Project had 'commenced' prior to July 1, 1973.

The plaintiffs challenge both grounds for the judgment below. They contend that the cutting of shade trees which beautify and cool County Street and the widening and straightening of County Street's roadway so as to produce a higher speed traffic artery threaten significant environmental harm which must be considered in an EIR. They argue that the Legislature intended that balancing of environmental harm against environmental advantage should occur in the EIR and that such balancing by a trial judge, reviewing an administrative determination that no EIR is required because impending environmental harm is insignificant, subverts the statutory procedure to have such balancing performed in the context of interagency review. Further, the plaintiffs maintain that the Project had not commenced on July 1, 1973, and that an EIR would still have been 'practicable' on that date. They emphasize that, as of July 1, 1973, the contract with A. R. Belli, Inc., for construction had not been signed and actual construction had not begun.

To succeed in this appeal, the plaintiffs must prevail on both phases of their argument. Because we hold that the trial judge properly found and ruled that the Project had commenced before July 1, 1973, we do not reach the plaintiffs' arguments respecting the significance of the environmental harm threatened.

4. Commencement of the Project. Our review of the findings, rulings and judgment of the trial judge, entered August 15, 1974, is governed by the new Massachusetts Rules of Civil Procedure. Mass.R.Civ.P. 1A, 365 Mass. --- (1974). In nonjury cases, such as the instant one, the rules provide that '(f)indings of fact shall not be set aside unless clearly erroneous.' Mass.R.Cir.P. 52(a), 365 Mass. --- (1974). 'A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on...