Town of Canton v. Comm'R of Highway Dept.

• Decision Date: 19 January 2010
• Docket Number: SJC-10431.
• Citation: 919 N.E.2d 1278,455 Mass. 783
• Parties: TOWN OF CANTON v. COMMISSIONER OF The MASSACHUSETTS HIGHWAY DEPARTMENT & another.<SMALL><SUP>1</SUP></SMALL>
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

919 N.E.2d 1278

455 Mass. 783

TOWN OF CANTON v. COMMISSIONER OF The MASSACHUSETTS HIGHWAY DEPARTMENT & another.¹

SJC-10431.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued November 3, 2009.

Decided January 19, 2010.

John M. Stevens, Boston (Thaddeus A. Heuer with him) for the plaintiff.

Douglas H. Wilkins, Cambridge (William L. Lahey with him) for Doherty Development Associates, LLC.

Pierce O. Cray, Assistant Attorney General (Julie B. Goldman, Assistant Attorney General, with him) for commissioner of the Massachusetts Highway Department.

Heather A. Walsh, Peter Shelley, Boston, & Claire Yancey, for Conservation Law Foundation, amicus curiae, submitted a brief.

John Pagliaro & Martin J. Newhouse, Boston, for New England Legal Foundation & another, amici curiae, submitted a brief.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, BOTSFORD, & GANTS, JJ.

IRELAND, J.

We granted two applications for direct appellate review in this case to interpret the provision set forth in G.L. c. 30, § 62H, second par., requiring that an action challenging the certification of an environmental impact report (EIR) for a "private" development project "shall commence no later than thirty days following the first issuance of a permit." The town of Canton (town) commenced an action in the Superior Court alleging, inter alia, that a final EIR (FEIR), submitted by the defendant Doherty Development Associates, LLC, doing business as Cabot, Cabot & Forbes of New England as development agent for CFRI/Doherty Westwood Station Holdings, LLC, and CFRI/Doherty 105 Rosemont Road, LLC (CCF), failed to comply with the Massachusetts Environmental Policy Act, G.L. c. 30, §§ 61-62H (MEPA). A Superior Court judge allowed CCF's motion to dismiss the complaint because it was not filed timely; judgment entered dismissing the complaint against all defendants. The town appealed. Because we conclude that the judge did not err in determining that the town's complaint was not timely under the pertinent provisions of G.L. c. 30, § 62H, second par., we affirm.

The Massachusetts Environmental Policy Act. We first provide a brief overview of MEPA's statutory scheme.

MEPA's purpose is to protect the environment. Cummings v. Secretary of Envtl. Affairs, 402 Mass. 611, 614, 524 N.E.2d 836 (1988). Our cases have noted that the "express purpose of [MEPA is] `to immediately expedite environmental approvals.'" Hull v. Massachusetts Port Auth., 441 Mass. 508, 517, 806 N.E.2d 901 (2004), quoting Enos v. Secretary of Envtl. Affairs, 432 Mass. 132, 137, 731 N.E.2d 525 (2000) (discussing preamble to 1977 amendment to MEPA).

"General Laws c. 30, § 61, establishes the official policy of environmental protection for the Commonwealth, and §§ 62-62H establish the process by which the `potential environmental impact of certain projects' is considered." Hull v. Massachusetts Port Auth., supra at 513, 806 N.E.2d 901, quoting Enos v. Secretary of Envtl. Affairs, supra at 136, 731 N.E.2d 525. See G.L. c. 30, § 61, second par.²

Any person,³ corporation, or government entity intending to apply for a permit for a project must notify the Secretary of the Executive Office of Environmental Affairs (Secretary). G.L. c. 30, § 62A. This begins the MEPA process, and agencies⁴ are prohibited from granting permits until that process is completed. G.L. c. 30, §§ 62A-62C. See Enos v. Secretary of Envtl. Affairs, supra; 301 Code Mass. Regs. § 11.12(4) (2008).⁵ The Secretary determines whether an EIR must be submitted, as well as its form and content. G.L. c. 30, § 62A. Draft EIRs and FEIRs are submitted to the Secretary, who issues a public notice, and to whom written comments may be submitted. G.L. c. 30, § 62C, second par. At the end of the public review period, the Secretary issues a final statement indicating whether the FEIR complies with MEPA. G.L. c. 30, § 62C, fourth par. If it complies, this certification concludes the MEPA process, but does not indicate final approval or disapproval of the project itself, which is left to the permitting agencies. Allen v. Boston Redevelopment Auth., 450 Mass. 242, 247, 877 N.E.2d 904 (2007), citing G.L. c. 30, § 62C, and Enos v. Secretary of Envtl. Affairs, supra at 137, 731 N.E.2d 525.

In addition, before any agency may take action on a project, it is required to make substantive findings certifying that all feasible measures have been taken to avoid or minimize the environmental impact, if any, of a project. Enos v. Secretary of Envtl. Affairs, supra at 136, 731 N.E.2d 525, quoting G.L. c. 30, § 61 (§ 61 finding). See note 2, supra. To this end, the Secretary supervises the submission of draft and final EIRs to interested agencies. Enos v. Secretary of Envtl. Affairs, supra.

A FEIR may be challenged under G.L. c. 30, § 62H. At issue here is a provision in the second paragraph of § 62H, which provides that, for a "private project," an "action . . . alleging that a [FEIR] fails to comply with [MEPA] shall commence no later than thirty days following the first issuance of a permit" (time limitation). Although § 62H permits a challenge to a FEIR, "[n]either [it] nor the Secretary's regulations confer jurisdiction on the Superior Court. Section 62H . . . simply provides, with respect to actions over which a court has jurisdiction from another source, that such actions must be commenced within a certain period following specified events. It is essentially a statute of limitations." Cummings v. Secretary of Envtl. Affairs, supra at 613, 524 N.E.2d 836. Jurisdiction is conferred by G.L. c. 214, § 7A, third par., which states, in relevant part:

"The superior court for the county in which damage to the environment is occurring or is about to occur may, upon a civil action in which equitable or declaratory relief is sought . . . by any political subdivision of the commonwealth, determine whether such damage is occurring or is about to occur . . . provided, however, that the damage . . . constitutes a violation of a statute, ordinance, by-law or regulation the major purpose of which is to prevent or minimize damage to the environment."

See Cummings v. Secretary of Envtl. Affairs, supra at 614, 524 N.E.2d 836; G.L. c. 30, § 62H, first par. (time for filing notice of intention to commence action overrides time limits set forth in G.L. c. 214, § 7A). However, no action challenging a FEIR may be commenced unless the party files a notice of intent. G.L. c. 30, § 62H, first par.⁶

Facts and background. We summarize the essential, undisputed facts, as found by the judge in her written memorandum of decision and order. CCF proposed a mixed-use development project (project) located in Westwood, on the boundary with the town. One of the primary means of accessing the project site is Dedham Street, which runs through the town. The town's concern is that the use of Dedham Street, including its use through the potential construction of an exit ramp from Interstate Route 95, would increase traffic on the surrounding roads and bridges.

Pursuant to its statutory obligation, in January and September, 2007, CCF submitted, respectively, a draft EIR and a FEIR for its project. The town commented on both EIRs concerning traffic. See G.L. c. 30, § 62C, second par.

On November 1, 2007, the Secretary issued a certificate pursuant to G.L. c. 30, § 62C, that stated that CCF's FEIR complied with MEPA and the related regulations. The certificate set forth conditions that CCF had to meet in order to pursue the project, including acquisition of certain permits and specific traffic mitigation for Dedham Street. At least two of the permits CCF was required to obtain were from the Massachusetts Highway Department (highway department). On November 21, 2007, pursuant to G.L. c. 30, § 62H, first par., the town filed a written notice of its intent to commence an action for judicial review of the certification. See note 6, supra. The town cited traffic concerns as the ground for the notice.

In January, 2008, a sewer connection permit was granted to CCF by the Department of Environmental Protection, G.L. c. 30, § 61, but it did not publish notice of this permit or notify the town directly. Despite the notice of its intention to file suit, the town did not file an action in response to this permit. The town states that it does not object to this particular permit.⁷

On or about September 25, 2008, the highway department issued a § 61 finding concerning traffic and related impacts on the environment that was based on the certification of CCF's FEIR, and was favorable to CCF. G.L. c. 30, § 61, first par. In response, the town filed a complaint on October 24, 2008, seeking judicial review of the certification of the FEIR and of the highway department's finding.

CCF filed a motion to dismiss or, in the alternative, a motion for summary judgment, arguing that the thirty-day time limitation for the town to commence an action began running in January, 2008, after the sewer permit issued.

Discussion. The town sets forth several arguments to support its contention that, where there is a private project, the statute's thirty-day time limitation on commencing an action concerning the adequacy of the FEIR certificate does not begin to run until a permit has been issued that pertains to the specific concern of the party challenging the certification. Accordingly, the town argues, because it had identified traffic as a concern when it filed its notice of intent to commence an action, the time limitation did not begin to run until the highway department issued its § 61 finding concerning traffic. Therefore, the town contends, the judge erred in dismissing its complaint. The town also argues that, should we conclude that it was required to commence an action within thirty days of the issuance of the sewer permit, we should nevertheless conclude that the time limit was tolled because there was no public notice of the permit.⁸

"We interpret a statute according to the intent of the...