COMMONWEALTH OF MASSACHUSETTSDEPARTMENT OF THE TRIAL COURT

MIDDLESEX, SS. SUPERIOR COURT DEPARTMENTCivil Action No.: MICV2009-03934

v.

Plaintiffs,

Defendants.

FELLSWAY DEVELOPMENT, LLC, LANOWOODCOMMONS, LLC, IAN A. BOWLES, as he is Secretaryof Energy and Environmental Affairs, and RICHARD K.SULLIVAN, as he is Commissioner of the Department ofConservation and Recreation,

)TEN PERSONS OF THE COMMONWEALTH, including)The Friends of The Middlesex Fells Reservation, Inc., )David Hoff, Heidi Kelf,Mike Ryan, Sandra Pascal, Carol )McKinley, Hubert E. Holley, Karen Johnson, Tom Lincoln, )Catherine Moore, and Fritz Bosch, and the )CITY OF MEDFORD, )

)))))))))))))

PLAINTIFFS' OPPOSITION TO THE STATE DEFENDANTS' MOTION TODISMISS PURSUANT TO MASS. R. CIV. P.12(b)(1) and MASS. R. elv. P. 12(b)(6)

In this case, the Plaintiffs seek a declaration that the Secretary of the Executive Office

of Energy and EnvironmentalAffairs ("Secretary") and the Commissioner of the Department

of Conservation and Recreation ("DCR") (the "State Defendants") have violated the

Massachusetts Environmental Policy Act, 0.1. c. 30, §§ 61-62H ("MEPA"), the regulations at

301 CMR 11.00 ("MEPA Regulations"), and DCR's parkway protection statute at 0.1. c. 92,

§ 35, as amended. The State Defendants' violations allow Fellsway Development LLC and

Langwood Commons LLC (the "Private Defendants") to construct a large mixed~use

development (the "Project") on land surrounded by the Middlesex Fells Reservation without

first submitting their traffic mitigation plan to MEPA and DCR for review and permitting.

Unless these violations are corrected, "damage to the environment" within the meaning of

G.L. c. 214, § 7A will occur.

The State Defendants have filed a Motion to Dismiss Pursuant to Mass. R. Civ. P.

12(b)(1) and 12(b)(6) (the "State Motion"), seeking dismissal of the claims against them. As

described below, the State Motion should be denied.

I. LEGAL FRAMEWORK AND RELEVANT FACTS

The Plaintiffs hereby incorporate by reference and adopt the summary of "Legal

Framework and Relevant Facts" presented in the Plaintiffs' Opposition to Fellsway

Development LLC and Langwood Commons LLC's Motion to Dismiss for Lack of Subject

Matter Jurisdiction, which was filed previously with this Court in this proceeding. The

Plaintiffs add the following brief statement of relevant facts.

Since the Private Defendants first announced their development plans, the Project has

included a plan to modifY DCR's parkways to accommodate the Project's traffic increases and

infrastructure connections. l Complaint, ~~ 25-26. The Project has been subject to MEPA

jurisdiction because the permit required from DCR for those parkway modifications is

"Agency Action" under MEPA, and the filing of an Environmental Impact Report ("EIR") is

mandatory because the traffic increase exceeds the mandatory ErR "review threshold" for

traffic impacts set forth in the MEPA Regulations.2 Complaint, ~~ 22-25,32-37,42.

The "environmental resources;' at issue in this case are the scenic and character-

defining features of DCR's historic parkways, and the "environmental damage" at issue in

The need for this work and a DCR permit was acknowledged in May 2002 when DCR and the PrivateDefendants executed an MOD linking the scale of the Project to a requirement to modify DCR'sparkways to accommodate more than 8,000 new daily vehicle trips. Complaint, ~~ 25,26,34,42,60.

2 "ENF and Mandatory EIR - Generation of 3,000 or more New [additional daily trips] on roadwaysproviding access to a single location." 301 CMR 11.03(6)(a)(6).

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this case is the extent to which those features will be harmed by the roadway modifications

proposed by the Private Defendants to accommodate the increased traffic from their Project.

Complaint, ~~ 76-77. The State Defendants (and their predecessors) had pursued the

protection of these historic parkways throughout the MEPA review process for the Project by

requiring the Private Defendants to identify a reduced-build alternative for the Project, with

less traffic, in order to reduce the scope of their proposed parkway modifications. Complaint,

~~ 21-42. In response, the Private Defendants made some minor Project changes, but they did

not satisfy the State Defendants or the Massachusetts Historical Commission ("MHC") that

the scale of the Project was reduced sufficiently to avoid adverse impacts to the parkways?

Complaint, ~~ 32-42. Thus, in January 2006 the Secretary again required the Private

Defendants to file a Supplemental FEIR ("SFEIR") proposing an "appropriate reduced build

alternative ... whose associated traffic impacts can be reasonably mitigated without adversely

affecting the character of the parkways." Complaint, ~ 36.

Rather than filing an SFEIR with a reduced-build alternative as directed by the

Secretary, the Private Defendants adopted the position that their plan to modify DCR's

parkways, which would require a DCR permit, was merely "voluntary." They then retracted

the "voluntary" plan and claimed they could build their Project at its current scale, without

any further MEPA review,. because they were not seeking a DCR permit. Complaint, ~~ 41-

42, 47. The premise of the Private Defendants' theory is that DCR does not have authority to

require them to implement the necessary parkway changes, so if they do not seek a DCR

permit to perform that work, then the MEPA jurisdiction for their Project evaporates. Id.

MHC has jurisdiction to eliminate, minimize, or mitigate adverse effects on the historic parkways bymaking a determination whether or not the Project's proposed modifications to the DCR parkways willhave an adverse affect on the parkways' key historic features. G.L. c. 9, §§ 26-27; 950 CMR 71.00.

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Initially, the State Defendants rejected this attempt to evade their jurisdiction. DCR

affirmed that "mitigation measures, respecting the scenic and historic integrity of the

Middlesex Fells Parkway system, must be implemented to address public safety risks directly

posed by development of the project." Complaint, ~ 45. In a letter to the Private Defendants,

the Secretary issued the jurisdictional ruling that "DCR's approval of the roadway

improvements is required for this project. Accordingly, I reject the claim that the project

requires no state agency action. If you intend to proceed with this project, you must fulfill

your obligations to prepare [an SFEIR]." Complaint, ~ 46.

The Private Defendants filed suit against the Secretary to challenge these rulings, but

rather than asserting the full scope of their jurisdiction, the State Defendants opted to settle.

They negotiated the 2009 Memorandum of Understanding ("MOU") wherein DCR authorized

the Private Defendants to proceed with their development without having to perform their

parkway modification plan, the Transportation Safety Improvements Plan ("TSIP"), under a

DCR permit. Complaint, ~~ 48-50. Specifically, the Commissioner agreed that DCR would

implement the TSIP on behalf of the Private Defendants if the Private Defendants would

contribute $1.8 million for the TSIP work. Complaint, ~ 50. Armed with this MOU that

segmented their develojJment from the parkway changes designed to address their traffic, the

Private Defendants sought a new legal ruling from the Secretary to declare that MEPA

jurisdiction no longer applies to theirProject. Complaint, ~ 49.

The Secretary granted that request by ruling in his Advisory Opinion that DCR does

not have authority under G.L. c. 92, § 35 to require the Private Defendants to implement the

TSIP themselves and obtain a DCR permit for that work. State Motion, Exh. A, pg. 4, par. 3.

On that basis, the Secretary ruled that "in the absence of a request for a permit or direct or

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indirect financial assistance from the [Private Defendants], I do not have the authority to

assert MEPAjurisdiction over the private development." State Motion, Exh. A, pg. 5, par. 2.

II. ARGUMENT

A. Standard of Review

In presenting their statement of the standard of review for their motion to dismiss

under Rule 12(b)(I), the State Defendants cite Wooten v. Crayton, 66 Mass. App. Ct. 187,

1·90 n.6 (2006), to suggest that "disputed facts" should not be viewed in the light most

favorable to the nonmoving party. "If the defendant makes a supported, factual challenge to

subject matter jurisdiction, the court is required to address the merits of the jurisdictional

claim by resolving any factual disputes between the plaintiff and the defendant." Id. Here,

the State Defendants have not presented any challenge to the facts contained in the Complaint

through documents, affidavits and other materials outside the pleadings. As there is no

factual dispute for the Court to resolve on the Rule 12(b)(I) motion, jurisdiction should be

evaluated on the basis of the presumptive weight given to the Complaint. Callahan v. First

Congregational Church of Haverhill, 441 Mass. 699, 711 (2004).

Similarly, in evaluating the motion to dismiss under Rule 12(b)(6), the Court should

accept, as true, all of the factual allegations of the Complaint as well as any favorable

inferences reasonably drawn from them. Sullivan v. Chief Justice for Administration and

Management, 448 Mass. 15,20-21 (2006), citing Ginther v. Commissioner ofIns., 427 Mass.

319, 322 (1998). Here, while the Plaintiffs needed only to present factual allegations at this

pleading stage "plausibly suggesting" an "entitlement to relief," Iannacchino v. Ford Motor

Co., 451 Mass. 623,636 (2008), citing Bell Atl. Corp v. Twombly, 550 U.S. 544, 127 S.Ct.

1955, 1966 (2007), the Complaint provides extensive and detailed factual allegations asserting

a clear right to relief and, thus, the Motion should be denied.

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B. This Court Has Subject Matter Jurisdiction Under G.L. c. 214, § 7A.

The Plaintiffs' primary cause of action is brought under G.L. c. 214, § 7A, which

allows Plaintiffs to petition this Court for a determination that "damage to the environment is

occurring or is about to occur" and that such 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." G.L.c. 214, § 7A. As demonstrated below, the Plaintiffs have standing

under G.L. c. 214, § 7A and have properly pled that the actions of both State Defendants are

in violation ofMEPA and DCR's statutes.

I. Cummings Does Not Bar the Plaintiffs' Claims.

As a preliminary matter, the State Defendants argue that Plaintiffs' claims are barred

by Cununings v. Secretary of the Executive Office of Envtl. Affairs, 402 Mass. 611 (1988),

asserting that the Plaintiffs' Complaint is "like" the suit that was brought in Cummings "to

challenge the Secretary's conclusion that a project did not require an EIR." State Motion at 9.

To the contrary, Cummings does notcontrol here because that case is factually distinct.

If a project subject to MEPA jurisdiction does not exceed a review threshold that

triggers mandatory filing of an EIR, the Secretary is allowed to use discretion to decide

whether or not to require an EIR. G.L. c. 30, § 62A; 301 CMR 11.03. In Cununings, the

plaintiffs claimed that a discretionary decision not to require an EIR was a "violation of

MEPA." Cummings, 402 Mass. at 615. The SJC rejected the claim on the grounds that the

plaintiffs had not identified any provision of MEPA that the Secretary might be violating by

determining in that context that an EIRwas not required. rd. at 616.

The State Defendants argue. that the Secretary's ruling here is comparable to the

discretionary EIR decision at issue in Cummings. The stark differences in the regulatory

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contexts for the Secretary's actions at issue in Cummings and the instant case demonstrate

that they are not analogous. Under the MEPA Regulations at 301 CMR 11.01(6)(a), an

Advisory Opinion is a ruling issued by the Secretary:

[i]n case of doubt as to the meaning or applicability of any provision orrequirement of MEPA or 301 CMR 11.00 (including whether an entity is anAgency, whether a decision or action is Agency Action, whether a Project issubject to MEPA jurisdiction, or whether a Project meets or exceeds one ormore review thresholds).

Thus, the ruling challenged here presents a substantive legal analysis of MEPA jurisdiction

concerning a Project that exceeds the review threshold for a mandatory EIR. The Secretary's

jurisdictional ruling was not a simple discretionary decision that the Project "did not require

an [EIR]," which is the catch phrase the State Defendants have used in their attempt to fit this

case within Cummings. State Motion at 9.

The SIC has explained that its holding in Cummings is limited to the specific factual

situation addressed there. In Villages Dev. Co. v. Secretary of the Executive Office of Envtl.

Affairs, 410 Mass. 100, 108 (1991), the SIC declared:

As the Cummings opinion makes clear, its holding is specifically limited ... tothe facts involved in the case. See id at 614,524 N.E.2d 836. It does not, asthe Secretary suggests, establish a broad class of MEPA decisions which arecommitted to the Secretary's discretion and unreviewable in court.

In Villages, the SIC held that a jurisdictional interpretation made under MEPA is subject to

judicial review to determine whether the Secretary "exceeded the statutory limitations on his

authority." Villages, 410 Mass. at 111-115. The decision of the Secretary addressed in the

Complaint here clearly involves a jurisdictional interpretation like that at issue in Villages,

and not the routine discretionary decision that was the subject of Cummings. The Secretary

himself acknowledges that the Advisory Opinion is a "legal interpretation" regarding MEPA

jurisdiction and not a routine MEPA decision. State Motion, Exhibit A, pg. 6, par. "2. As this

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case involves a substantive legal ruling on MEPA jurisdiction that is not analogous to the

decision challenged in Cummings, that case does not preclude review of the Plaintiffs' claims.

Finally, it is noteworthy that the SJC has decided in more recent cases that decisions

made by the Secretary regarding MEPA compliance are subject to judicial review to ensure

they are not arbitrary or capricious.. Allen v. Boston Redevelopment Auth., 450 Mass. 242,

254 (2007); Sierra Clubv. Commissioner of the Department of Environmental Management,

439 Mass. 738, 748 (2003). These decisions further support the conclusion that this Court has

subject matter jurisdiction to review the Plaintiffs' claims.

2. Plaintiffs Have Standing To Assert Claims Under G.L. c. 214, § 7A.

Under G.L. c. 214, § 7A, third par., a municipality or ten persons domiciled in the

Commonwealth may bring an action alleging that "damage to the environment is occurring or

is about to occur" and "that the damage ... constitutes a violation of [an environmental] statute

[or] regulation." Town· of Canton v. Commissioner of the Massachusetts Highway

Department, No. SJC-I0431 (Sup. Jud. Ct., January 19, 2010), slip op. at 4, citing Boston v.

Massachusetts Port Auth., 364 Mass. 639, 645 (1974) (under former G.L. c. 214, § lOA,

standing "expressly established"). See also Cummings, 402 Mass. at 614 (G.L. c. 214, § lOA,

predecessor of § 7A, is "like it in all material respects"). Thus, the SJC ruled that "under the

express terms of § 7A, third par., standing does not require a specific injury to the [plaintiffs],

but an injury or potential injury to the environment." Town of Canton, No. SJC-10431, slip

op. at 4.

Count III of the Complaint asserts an injury or potential injury to the environment

under G.L. c. 214, § 7A, and the Plaintiffs have properly asserted these claims.4 Complaint,

4 Accordingly, there is no basis for the State Defendants' erroneous contention that the Plaintiffs "do notallege any other basis for jurisdiction" other than G.L. c. 23 lA, § I. State Motion at 10.

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,/,/71-80. Accordingly, the persons and municipality named here as Plaintiffs have standing

to assert the claims under 0.1. c.2l4, §7A pled in the Complaint.

a. Plaintiffs Have Alleged Violations by the Secretary.

The Plaintiffs have properly alleged that the Secretary's actions constitute violations

of statutes or regulations designed to protect the environment.

First, the Plaintiffs allege that the Secretary violated 0.1. c. 92, § 35, which mandates

that DCR "shall preserve and protect the scenic and historic integrity of its roadways and

boulevards," by failing to exercise his lawful authority to manage and direct the affairs of

DCR in accordance with 0.1. c. 2lA, §§ l-18A. Complaint, ,/,/17, 70 and 76.

Second, the Plaintiffs allege that the Secretary has violated MEPA and the MEPA

Regulation at 301 CMR 11.01(2)(c) by curtailing MEPAjurisdiction on the basis of improper

project segmentation. Complaint at '/'/61-63,77. The SJC has affirmed that an allegation of

a violation ofMEPA or a regulation pursuantto MEPA qualifies under 0.1. c. 214, § 7A as a

claim that "damage to the environment is occurring or is about to occur." Cummings, 402

Mass. at 614.

In this regard, it is relevant that the Secretary ruled that the Private Defendants' TSIP

must be submitted for both MEPA and MHC review before being implemented because it

"would involve alteration of a roadway listed in the State Register of Historic Places." State

Motion, Exh. A, pg. 5, par. 1. The Secretary also stated, "While there is no dispute that

DCR's roadway safety improvement plans will address traffic resulting from the Proponent's

development proposal, it is hardly fairto say that the hospital redevelopment and construction

of housing units on the site are part of any cooperative plan by DCR to facilitate that

development." State Motion, Exh. A,pg. 5,par. 2. The Secretary added that because "the

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work DCR will be pursumg has public benefits that are independent of the [Private

Defendants'] development project, ... I cannot conclude that DCR's roadway work, and the

[Private Defendants'] redevelopment work, are one project." State Motion, Exh. A, pg. 5,

par. 2. Notably, in these statements the Secretary depicted the Private Defendants' TSIP as

"DCR's roadway safety improvement plan," "DCR's roadway work," and "the work DCR

will be pursuing." The intention seems to have been to disguise the TSIP as DCR's own

project and deny that the TSIP and the Private Defendants' Project comprise a common plan.

Thus, the Secretary relinquished MEPA jurisdiction over the Private Defendants' Project,

ruling, "I do not find the anti-segmentation provisions applicable to the limited and particular

circumstance currently before me." State Motion, Exh. A, pg. 4, par. 1. However, MEPA

Regulations squarely provide that a project proponent "may not phase or segment a Project to

evade, defer or curtail MEPA review." 301 CMR 11.0l(2)(c). It is the violation of this

MEPA regulation that the Plaintiffs' challenge.

b. Plaintiffs Have Alleged Violations by the Commissioner.

The Plaintiffs also have properly alleged that the Commissioner's actions involve

violations of statutes or regulations designed to protect the environment.

First, with regard to the allegations against the Commissioner under MEPA, the State

Defendants argue that "relief pursuant to G.L. c. 214, § 7A is not available to the Plaintiffs

against DCR in its role as a permit-granting authority" because "an agency can only be sued

under G.L. c.2l4, § 7A where that agency is the project proponent." Motion at 15, citing

Cummings, 402 Mass. at 616. The State Defendants ignore the allegations that, in the MOD,

DCR accepted the role ofproponent for the TSIP designed to address the Private Defendant's

traffic impacts. Complaint, ~~ 61-62. Dnder the MEPA Regulations, a "Proponent" is "Any

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Agency or Person ... that undertakes, or has a significant role in undertaking, a Project." 301

CMR 11.02(2). In this case, DCR clearly falls within the definition ofa "Proponent."

In Cummings, the SIC noted that subject matter jurisdiction exists under G.L. c. 214,

§ 7A to review a claim that an "agency proposing a project failed to comply with the

procedural requirement· of a statute or regulation designed to protect the environment."

Cummings, 402. Mass. at 615. As stated above, by severing the Project's roadway

modifications in the TSIP from the Private Defendant's development, DCR (with the Private

Defendants) has violated the anti-segmentation rwe in 301 CMR 11.01(2)(c).5 Thus,

jurisdiction exists under G.L. c. 214, § 7A for this Court to review allegations against the

Commissioner of a violation of MEPA.

Second, the Plaintiffs have alleged that the Commissioner violated his duty under G.L.

c. 92, § 35, as amended, which states that the Commissioner "shall preserve and protect the

scenic and historic integrity" of the DCR parkways.,,6 Complaint, '1['1[28-29, and 67. Based

on this mandate, the Commissioner should have directed the Private Defendants to seek a

permit from DCR for the modifications to DCR's parkways that were designed in the TSIP to

address the increased traffic from their development. Complaint, '1['1[61,67-70, and 76. As

stated in G.L. c. 30, § 61, "Unless a clear contrary intent is manifested, all statutes shall be

interpreted and administered so as to minimize and prevent damage to the environment."

The State Defendants admit that the Commissioner is a "proponent," where they assert that "nothing inthe MOD indicates that the Commissioner has refused to comply with MEPA or undergo MEPA reviewif necessary when the TSIP is implemented," and that "[s]uch a claim will not be ripe unless theSecretary requires DCR to fulfill MEPA requirements in connection with implementation of the TSIPand DCR fails to comply with the Secretary's request." Motion at 15. Also, as the MOD has alreadybeen executed and grants DCR's authorization for the Private Defendants to proceed with theirdevelopment, this claim against the Commissioner is not premature.

G.L. c. 92, §§ 33 and 37, and 350 CMR2.08, are complementary to G.L. c.92, § 35. Complaint at1111 66-70. The current version of350 CMR 2.00 was adopted by DCR's predecessor in April 2001, andDCR did not make any changes after the amendment to G.L. c. 92, § 35 was enacted in 2003.

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The State Defendants acknowledge that the regulation at 350 CMR 2.08 requires a

permit from DCR before digging up a DCR roadway, but they claim that "DCR requires

permits from private parties only when such parties physically alter DCR roadways, and not

when, as here, a private party merely adds traffic to a DCR roadway using an existing 'curb-

CUt.",7 Motion at 13. However, the State Defendants argue that "Plaintiffs want this Court to

compel the Commissioner to interpret the DCRstatute to require the Developers to obtain a

permit for a purely private prOject that does not propose work on DCR-owned land." Motion

at 13 (emphasis added). They also argue that "Plaintiffs' attempt to compel the

Commissioner to require the Developers to seek a permit for the Third Project is foreclosed

by the Plaintiffs' failure to allege facts supporting a conclusion that the Third Project entails

work in DCR roadways." Motion at 13 (emphasis added).

This argument fails as it ignores the allegations in the Complaint that the Project does

entail work on DCR-owned land because the TSIP designed by the Private Defendants to

address their Project's traffic requires work in DCR roadways. Complaint, '\['\[61-63. Clearly,

the interconnection between the TSIP and the Project was not eliminated simply because the

MOU shifted the TSIP work to DCR. Accordingly, the State Defendants' premise fails, and

this Court has jurisdiction to review the allegations against the Commissioner.

C. Plaintiffs Have Standing Under G.L. c. 231A, § 1.

The State Defendants argue that the Court lacks jurisdiction here because the Plaintiffs

have not demonstrated standing to seek declaratory relief under G.L. c. 231A. Motion at 10.

The State Defendants acknowledge that the Complaint alleges violation of G.L. c. 92. §§ 33, 35 and 37.Motion at 12, citing Complaint, 1111 67-70. However, the State Defendants limit the basis of theirMotion to a discussion of only the provisions in G.L. c. 92, §§ 33 and 37. Motion at 12'13. Withoutany explanation or jnstification, they have ignored the statntory provision at G.L. c. 92, §35, whichforms the crux ofthe allegations in the Complaint. Complaint, 1111 61,67-70, and 76.

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In Enos v. Secretary of the Executive Office of Environmental Affairs, 432 Mass. 132 (2000),

the SJC explained its considerations for evaluating whether plaintiffs have standing to

maintain an action under G.L. c. 23IA:

In the final analysis, we must decide whether standing exists by examiningseveral considerations, including the language of the statute in issue; theLegislature's intent and purpose in enacting the statute; the nature of theadministrative scheme; decisions on standing; any adverse effects that mightoccur, if standing is recognized; and the availability of other, more definite,remedies to the plaintiffs. Enos, 432 Mass. at 135.

As described below, the Plaintiffs have demonstrated that their standing to assert claims for

declaratory relief under G.L. c. 231 A is consistent with these considerations.8

I. Plaintiffs Are Within An Area of Concern of MEPA.

According to 301 CMR 11.0I(l)(a), "the purpose ofMEPA and 301 CMR 11.00 is to

provide meaningful opportunities for public review of the potential environmental impacts of

Projects for which Agency Action is required." In evaluating the legislative purpose and

administrative scheme of MEPA in Enos, the SJC identified "two complementary provisions"

consisting of: (1) the requirements of Section 61 ofMEPA;9 and (2) the "process, supervised

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The State Defendants also assert that the Plaintiffs did not allege any other basis for jurisdiction. StateMotion at 10. This is plainly wrong, as Count III asserts claims under G.L. c. 214, § 7A. Even ifPlaintiffs had presented claims only under G.L. c. 231A, this argument has been rejected by the SJC."The Secretary's assertion that a declaratory judgment action can only be brought if there is anotherstalute that establishes jurisdiction is not accurate." Villages, 410 Mass. at 109. The SJC found thatG.L. c. 231A can "itselfprovide a basis ofjurisdiction," and that "the Superior Court had subject matterjurisdiction under G.L. c. 231A to decide [plaintiffs] dispute with the Secretary as to the lawfulness ofhis decision under MEPA and related administrative regulations." Id. at 110.

Under Section 61 of MEPA, "All agencies, departments, boards, commissions and authorities of thecommonwealth shall review, evaluate, and determine the impact on the nalural enviromuent of allworks, projects or activities conducted by them and shall use all practicable means and measures tominimize damage to the enviromuent. Unless a clear contrary intent is manifested, all stalutes shall beinterpreted and administered so as to minimize and prevent damage to the environment. Anydetermination made by an agency of the commonwealth shall include a finding describing theenvironmental impact, if any, of the project and a fmding that all feasible measures have been taken toavoid or minimize said impact. In considering and issuing permits, licenses and other administrativeapprovals and decisions, the respective agency, department, board, commission or authority shall alsoconsider reasonably foreseeable climate change impacts, including additional greenhouse gasemissions,and effects, such as predicted sea level rise."

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by the Secretary, for thorough consideration of the potential environmental impact of certain

projects through preparation of draft and final [EIRs],. and submission of these EIRs to

interested State agencies and to the public." Enos, 432 Mass. at 136. "It is through this

somewhat democratic process that full disclosure of the environmental impact of a project

may be made, to ensure a thorough environmental review of a project during its early

planning stages. Id. at 138. The SJC added that "theMEPA review process is unquestionably

concerned with ensuring that relevant information is gathered before a project is allowed to

proceed." Enos, 432 Mass. at 139.

The allegations in the Complaint show that Plaintiffs come within the scope of this

area of concern of MEPA. Unlike this case, Enos did not involve a question of MEPA

jurisdiction. The Plaintiffs' claims are easily distinguished from those in Enos, where the

challenge to the Secretary's certification that an EIR was proper and adequate was based on

"generalized claims of injury such as loss of use and enjoyment of property." Enos, 432

Mass. at 138. The SJC also emphasized that alternative remedies were available to the

plaintiffs in Enos. Id. at 142.

In contrast to the circumstances in Cummings and Enos, the MEPA process here has

not been allowed to run its course and MEPA jurisdiction has been foreclosed prematurely.

The actions of the State Defendants challenged in the Complaint wrongfully terminate MEPA

jurisdiction and curtail the MEPA process. The Plaintiffs' challenge invokes the purpose and

concern in MEPA that the public process for evaluating environmental impacts must be

conducted thoroughly and agencies like DCR comply with the requirement of Section 61 to

issue their permits with findings that all feasible measures have been taken to avoid or

minimize adverse environmental impacts. To demonstrate standing under this area of

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concern, Plaintiffs do not need to allege private claims .of injury such. as loss of use and

enjoyment of property. "When the question is one of public right and the purpose is to

procure the performance ofa public duty, and no other remedy is open, a petitioner need not

show that he has any special interest in the result: it is sufficient that as a citizen he is

interested in the due execution of the laws." Lutheran Service Ass'n of New England, Inc. v.

Metropolitan District Commission, 397 Mass. 341, 344 (1986).

With specific reference to the Plaintiff City of Medford, the State Defendants argue

that the City's "status as an abutting municipality does not establish standing." Motion at 11.

Citing Town of Walpole v. Secretary of the Executive Office of Envtl. Affairs, 405 Mass. 67,

72 (1989), the SIC in Enos suggested that, "[ljike the project proponent in Villages. the town

was a major player in the MEPA administrative process." Enos, 432 Mass. at 141 (emphasis

added). The City has been a major player in this MEPA process and is affected adversely by

. the failure of the Secretary to fulfill his procedural duty under MEPA. Moreover, contrary to

the State Defendants' assertion, the City is not raising claims with respect only to the

development at the site in Stoneham. Rather, it is concerned about the Project's traffic

impacts and modifications to parkways and highways in and near the City. Complaint, ,/60.

2. The Secretary Owes a Duty to Plaintiffs Under MEPA.

There also is no basis for the State Defendants' claim that Plaintiffs have not alleged

that the Secretary violated a duty owed to them under MEPA. State Motion at 10. The

Plaintiffs' Complaint contains explicit allegations that the Secretary violated his duty under

MEPA "to provide meaningful opportunities for public review of the potential environmental

impacts of Projects for which Agency Action is required" by failing to prevent improper

segmentation under 301 CMR 11.01(2)(c). Complaint, '/61. In Allen, the SIC held that even

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routine MEPA decisions by the Secretary are subject to judicial review based upon this

obligation to provide meaningful opportunities for public review. Allen, 450 Mass. at 257.

3. Plaintiffs Have Standing Under G.L. c. 231A to Challenge DCR's Actions.

The State Defendants argue that the Plaintiffs lack standing to challenge the

Commissioner's determination that the Private Defendants did not need to obtain a DCR

permit, on the grounds that the Plaintiffs have not alleged a "direct or particularized injury."IO

Motion at 13-14. This argument fails, as the Plaintiffs have shown that an area of concern of

DCR's statutes is the protection and preservation of the scenic and historic integrity of DCR's. ,

parkways and protection of public safety and convenience. Complaint, n 27, 67, 76. Under

the holding in Lutheran Service Ass'n, 397 Mass. at 344, the Plaintiffs have standing to

secure the performance of the Commissioner's duty regarding this area of concern.

The State Defendants further assert that "Plaintiffs have not met their burden to

establish standing to sue the Commissioner pursuant to the Declaratory Judgment Act"

because Plaintiffs "do not specify where, how or when the scenic and historic parkways will

be damaged by the Third Project." Motion at 14 (emphasis added). To the contrary, the

Complaint clearly shows that the scenic and historic parkways will be damaged by the

excessive roadway modifications that the Private Defendants have been proposing since

November 2000 to accommodate their Project's traffic increases. Complaint, '\['\[ 33, 37. In

making this assertion with a narrow reference to only the "Third Project," (i.e., the mixed-use

development at its current scale) and not the TSIP, the State Defendants apparently hoped to

perpetuate and exploit the pretext that the mixed-use development is not inextricably linked

10 Presumably, this argument was presented by the State Defendants only with respect to Count II of theComplaint (in which Plaintiffs assert a cause of action against the Commissioner under G.L. c. 231A)because the State Motion contains a separate argument regarding Count III. State Motion at 14-15.

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with the parkway modification plans set forth in the TSIP.

The Plaintiffs also have standing to sue the Commissioner III order to seek a

declaration that the MOU constitutes issuance of a "Permit" for the Project. Under MEPA, a

"Permit" includes "any permit, license, certificate, variance, approval, or other entitlement for

use, granted by an Agency for or by reason of a Project." 301 CMR 11.02(2). Thus, the

MOU is a Permit issued by the Commissioner because it contains DCR's approval of the

TSIP and authorizes the Private Defendants to commence their Project. Complaint, ~ 60.

In this regard, the Plaintiffs are in the same position as the plaintiffs in Sierra Club,

where the SJC held that the Superior Court had jurisdiction to hear a suit brought under G.1.

c.2l4, § 7A and G.1. c. 231A by an environmental advocacy organization and more than ten

residents of the Commonwealth alleging violations of MEPA and other statutes by DCR's

predecessor agency and a private proponent. Sierra Club, 439 Mass. at 745. The SJC ruled

that "a permit for a portion of the project effectively was issued when the commissioner gave

his approval to begin work on the ski lifts. Therefore, the case was properly before the

Superior Court." Sierra Club, 439 Mass. at 745, citing Enos, 432 Mass. at 142 (action may be

brought "after the permit authorizing aproject has been approved").

4. Recognition of Plaintiffs' Standing Under G.1. c. 231A Will Not Result inAdverse Effects, and No Other Remedies Are Available to the Plaintiffs.

The Plaintiffs' standing under G.1. c. 231A comports with considerations identified

by the SJC whether "any adverse effects that might occur, if standing is recognized" and "the

availability of other, more definite, remedies to the plaintiffs." Enos, 432 Mass. at 135-136.

First, no adverse effects will occur if the Court recognizes the Plaintiffs' standing to

challenge the State Defendants' actions here. The questions presented here are of limited

scope because they involve the State Defendants' handling of the 2003 amendment to G.1.

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c. 92, § 35, which was enacted by the Legislature specifically to address the particular

environmental issue of concern for this Project. The Legislature enacted the directive for the

Commissioner to preserve and protect the scenic and historic character ofDCR's parkways

because the historic parkways in the Middlesex Fells Reservation, newly listed as registered

historic resources, were being threatened by the extensive modifications designed by the

Private Defendants to accommodate the traffic increases from their mixed-use development.

In addition, there are no other, more definite, remedies available to the Plaintiffs. In

Enos, the agency permit that would include Section 61 findings for the project had not yet

issued, so the Secretary's certification of the final EIR could be challenged later through an

appeal of the agency's permit. Enos, 432 Mass. at 142. In contrast, the suit was allowed to

proceed in Sierra Club because the MEPA process was completed after the "permit" with

Section 61 findings was issued. That remedy is not available here, because there is no other

forum for the Plaintiffs to present a challenge to the transaction embodied in the MOD.

As a final consideration, Plaintiffs urge this Court to consider the relevance of the

dissenting opinion by Justice Abrams in Enos, reiterating her dissent in Cummings and

concurring opinion in Walpole. In Enos, Justice Abrams noted: "The result of the court's

opinions is to exempt the Secretary's actions from judicial review by affected citizens. The

only person left to bring suit is the developer - the person least likely to make an

environmental challenge; an extraordinary outcome." Enos, 432 Mass. at 144 (Abrams, 1.,

dissenting). In this matter, the Private Defendants· had an opportunity to seek judicial review

when the Secretary rnled in July 2008 that MEPAjurisdiction did apply to their Project. The

State Defendants responded to that challenge by negotiating the MOD, a permit that allows

the Private Defendants to evade MEPA jurisdiction. If ever a case were to illustrate the logic

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of the opinions written by Justice Abrams, i.e., that citizens and municipalities should have

the equal right to challenge actions of the State Defendants, it would be this case with its

questions of law regarding MEPA jurisdiction and DCR's regulatory authority.

CONCLUSION

Under G.L. c. 214, § 7A, the Plaintiffs' standing is automatic, and it is clear that the

Complaint includes allegations that both State Defendants have violated statutes and

regulations that have prevention of damage to the environment as their major purpose. The

Plaintiffs also have demonstrated standing under G.L. c. 231A, § 1, based upon the language

of the statutes at issue, the Legislature's intent and purpose in enacting these statutes, the

absence of any adverse effects if standing is recognized, and the absence of other, more

definite, remedies available to the Plaintiffs. Accordingly, the State Motion must be denied.

PLAINTIFF, CITY OF MEDFORD,

By its attorney,

~~k- t ?IAM ltj (e4-)Mark E. Rumley, BBO #433900Office of the City Solicitor85 George P. Hassett DriveMedford, MA 021551-781-393-2470

Dated: January 29, 2010

PLAINTIFFS, TEN PERSONS OFTHE COMMONWEALTH

By their attorneys,

~~4~Cheryl A. Blaine, BBO #564077Keegan Wedin LLP265 Franklin StreetBoston, MA 021101-617-951-1400

t l1erel!>y ~ertf'fy thai B true cepy Qf{fie.above document was served upon tile

~~~_P_'/_l_q_I_II2_'

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