Ten Persons of The Commonwealth 1 & Another 2 v. Fellsway Dev. Llc & Others.3

• Decision Date: 11 August 2011
• Docket Number: SJC–10810.
• Citation: 460 Mass. 366,951 N.E.2d 648
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: TEN PERSONS OF the COMMONWEALTH 1 & another 2v.FELLSWAY DEVELOPMENT LLC & others.3

460 Mass. 366

951 N.E.2d 648

TEN PERSONS OF the COMMONWEALTH 1 & another 2

v.FELLSWAY DEVELOPMENT LLC & others.3

SJC–10810.

Supreme Judicial Court of Massachusetts, Middlesex.

Submitted May 5, 2011.Decided Aug. 11, 2011.

Barry P. Fogel (Cheryl A. Blaine with him), Boston, for the plaintiffs.

David A. Guberman, Assistant Attorney General, for Secretary of Energy and Environmental Affairs & another.Kerry T. Ryan, Boston, for Fellsway Development LLC & another.Gregor I. McGregor & Luke H. Legere, Boston, for Massachusetts Association of Conservation Commissions, Inc., amicus curiae, submitted a brief.William H. Solomon, Stoneham, for town of Stoneham, amicus curiae, submitted a brief.Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, & DUFFLY, JJ.CORDY, J.

In this case, we consider questions surrounding the proposed redevelopment of private property within the Middlesex Fells Reservation (Reservation) into commercial office space and residential condominium units. The plaintiffs are ten residents of cities and towns surrounding the Reservation, who use and enjoy its parkland and parkways, and the city of Medford. They commenced an action in the Superior Court pursuant to G.L. c. 214, § 7A, and G.L. c. 231A, against Fellsway Development LLC (Fellsway); Langwood Commons LLC; the Secretary of the Executive Office of Energy and Environmental Affairs (Secretary); and the Commissioner (commissioner) of the Department of Conservation and Recreation (DCR), seeking declaratory judgment and injunctive relief principally from alleged violations of the Massachusetts Environmental Policy Act (MEPA), G.L. c. 30, §§ 61–62H, and regulations promulgated thereunder, 301 Code Mass. Regs. §§ 11.00 (1998). The defendants filed separate motions to dismiss for lack of subject matter jurisdiction, pursuant to Mass. R. Civ. P. 12(b)(1), 365 Mass. 754 (1974), and for failure to state a claim, pursuant to Mass. R. Civ. P. 12(b)(6), 365 Mass. 754 (1974). Both motions rested on Cummings v. Secretary of Envtl. Affairs, 402 Mass. 611, 524 N.E.2d 836 (1988), which held that the Superior Court lacks subject matter jurisdiction to consider challenges to the Secretary's decision under MEPA not to require an environmental impact report (EIR). A judge in the Superior Court granted the motions and dismissed the action with prejudice. We affirm in part, reverse in part, and remand for further proceedings.

1. MEPA. Before discussion of the specific facts in this case, we begin with a summary of MEPA and relevant regulations promulgated thereunder, so as to put the proceedings in context. MEPA “sets forth a broad policy of environmental protection in this Commonwealth by directing [all State agencies] ⁴ to ‘review, evaluate, and determine the impact on the natural environment of all works, projects or activities conducted by them and ... use all practicable means and measures to minimize damage to the environment.’ ” Allen v. Boston Redevelopment Auth., 450 Mass. 242, 245, 877 N.E.2d 904 (2007), quoting G.L. c. 30, § 61. See Enos v. Secretary of Envtl. Affairs, 432 Mass. 132, 136, 731 N.E.2d 525 (2000) ( Enos ).

MEPA's principal engine is the EIR. See G.L. c. 30, §§ 61, 62B. For many projects within MEPA's jurisdiction, before the project may commence, its proponent must prepare an EIR. An EIR must “contain statements describing the nature and extent of the proposed project and its environmental impact; all measures being utilized to minimize environmental damage; any adverse short-term and long- term environmental consequences which cannot be avoided should the project be undertaken; and reasonable alternatives to the proposed project and their environmental consequences.” ⁵ G.L. c. 30, § 62B. The Secretary administers MEPA. After a public comment period, the Secretary issues a written certificate indicating whether the EIR “adequately and properly complies” with the provisions of MEPA, G.L. c. 30, § 62C. See 301 Code Mass. Regs. § 11.08(8).

Although MEPA, by its terms, applies only to the actions of State agencies or other public bodies, private development “[p]roject[s]” fall within the scope of MEPA's jurisdiction where any party “seeks the provision of financial assistance ⁶ by an agency, or requires the issuance of a permit ⁷ by an agency.” ⁸ G.L. c. 30, § 62. When the Secretary makes an initial determination that MEPA jurisdiction exists over a project, see 301 Code Mass. Regs. § 11.01(2), the private party is required to file an environmental notification form (ENF) with the Secretary informing him of the nature of the project and its potential impacts,⁹ and to provide public notice of the filing of the ENF.¹⁰ 301 Code Mass. Regs. § 11.05(1). See Villages Dev. Co. v. Secretary of the Executive Office of Envtl. Affairs, 410 Mass. 100, 102, 571 N.E.2d 361 (1991), citing G.L. c. 30, § 62A. The Secretary reviews the ENF and then “issues a written certificate stating whether an [EIR] is required.” Enos, supra. The regulations provide further guidance over this exercise. Once it is determined that a private project meets one of the triggers to MEPA jurisdiction (e.g., requires a permit or financial assistance), the Secretary then analyzes the project to determine if it meets or exceeds any of several “review thresholds” enumerated at 301 Code Mass. Regs. § 11.03. There are two categories of review threshold: those that require the filing of an ENF and a mandatory EIR (e.g., alteration of ten or more acres of wetlands; generation of 3,000 or more vehicle trips on an existing roadway to a single location), and those that require the filing of an ENF and “other MEPA review [only] if the Secretary so requires” (e.g., disturbance to endangered species habitat; generation of 2,000 or more vehicle trips on an existing roadway to a single location). 301 Code Mass. Regs. § 11.03.

Importantly, under anti-segmentation regulations, the proponent of a private project and any participating agency “may not phase or segment a Project to evade, defer or curtail MEPA review.” 301 Code Mass. Regs. § 11.01(2)(c).

2. Background.¹¹ In 2000, Fellsway purchased a forty-acre parcel of private property within the Reservation. The Reservation is a 2,575 acre network of wooded parklands, ponds, and historic parkways under the control of the DCR with “important ecological features” and “[u]nique green space within close proximity” to Boston. The property at issue is an existing site that has been occupied for more than one hundred years, most recently as a hospital. The site is accessed from Woodland Road, a four-lane parkway that DCR has called “the central spine of the Fells Reservation.”

There have been three separate proposals for redevelopment of the property. In 2000, Fellsway proposed a 914,000 square foot project, in which the existing hospital would be converted to offices. This first project iteration would have added 540,000 square feet of additional office space, and continued the use of 110,000 square feet of medical office condominium units. The project would have resulted in 8,920 additional vehicle trips per day on the Reservation's parkways. Fellsway proposed to construct physical alterations to Woodland Road to improve site access. The proposed road construction would have required a permit under the DCR regulations. ¹² 350 Code Mass. Regs. § 2.08(2) (since repealed) (“no boulevard or [DCR] land shall be dug up, nor any opening made therein for any purpose without a permit”).¹³ Fellsway submitted an ENF, and the Secretary accordingly determined that because of the required permits, the proposed redevelopment fell within the jurisdiction of MEPA.¹⁴ He ordered the mandatory filing of an EIR.

Unrelated to the development, in 2002, the Middlesex Fells Reservation Parkways District was listed on both State and Federal Registers of Historic Places. Soon after, the Legislature directed that DCR “shall preserve and protect the scenic and historic integrity of its roadways and boulevards.” G.L. c. 92, § 35, as amended by St.2003, c. 26, § 248.

In 2003, Fellsway submitted its final environmental impact report (FEIR).¹⁵ The Secretary issued a certificate that the FEIR did not comply with MEPA because Fellsway did not adequately address “the significant volume of traffic that this development will generate and the associated impacts to the historic parkways and open spaces of the Middlesex Fells Reservation.”

In 2005, Fellsway filed a notice of project change with the Secretary, identifying itself and Langwood Commons LLC (collectively, developers) as coproponents of a new redevelopment project. This second project iteration called for redevelopment of 250,000 square feet of office space and 450 residential units. The developers acknowledged the continued need for permits from DCR to construct roadway alterations, and the Secretary ordered them to file a supplemental final environmental impact report (SFEIR).

Meanwhile, in connection with its historic designation and the amendment of G.L. c. 92, § 35, in 2006, the DCR issued a “Vision Plan” that studied “unacceptable” traffic safety issues on the Reservation's parkways. The DCR sought to combat the increasing arterial use of the Reservation's parkways as “attractive by-pass commuting routes.” The DCR concluded that the “parkway's historic design intent of providing a leisurely driving experience and making recreational features accessible has been greatly compromised.” The DCR's Vision Plan focused on Woodland Road, proposing to “reclaim” it by reducing the number of vehicle lanes from four to two, and building a bicycle and pedestrian path.

In 2007, after the DCR published the Vision Plan, the developers proposed a third iteration of the project, which was later further reduced to 225,000 square feet of office space and 310 housing units. The developers contended that this third iteration did not require any permits from the DCR because the developers eliminated all physical...