Ten Persons Commonwealth v. Fellsway Dev. LLC

By the Court (Carhart, Maldonado & Henry, JJ.), Clerk

NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

Following an order of remand by the Supreme Judicial Court, see Ten Persons of the Commonwealth v. Fellsway Dev. LLC, 460 Mass. 366, 384 (2011) (Fellsway I), a judge in the Superior Court (motion judge) allowed the defendants' motions for summary judgment on so much of the plaintiffs' second amended complaint as sought declaratory and injunctive relief under G. L. c. 214, § 7A, and alleged a violation of 301 Code Mass. Regs. § 11.01(2)(c) (1998). We affirm.

Background. The facts underlying this suit are set forth in detail in Fellsway I. We summarize the undisputed facts that are material to this appeal. Defendants Fellsway Development LLC and Langwood Commons LLC (collectively, developers) own property in Stoneham and are the proponents of a private redevelopment project for that property. The property abuts the Middlesex Fells Reservation (Reservation), which is under the care and control of the defendant Department of Conservation and Recreation (DCR).

From 2000 to 2008, the developers presented three iterations of their proposed development. The first two proposals would have required permits from DCR, because they involved alterations to the Reservation's scenic parkways. Although the third iteration of the project (third development) did not propose alterations to the parkways, DCR advised the Secretary of the Executive Office of Energy and Environmental Affairs (Secretary) that it believed the third development fell within the scope of the Massachusetts Environmental Policy Act (MEPA), G. L. c. 30, §§ 61-62H, and regulations promulgated thereunder, see 301 Code Mass. Regs. §§ 11.00 (1998), because "mitigation measures" would be required to protect the parkways. On July 3, 2008, the Secretary issued an advisory opinion that the third development was subject to MEPA (2008 determination).

The developers' challenge to the 2008 determination was settled after the developers and DCR executed a memorandum of understanding (MOU) whereby the developers paid $1.8 million into an escrow fund for use by DCR in implementing a transportation safety improvements plan (TSIP) for the Reservation's parkways. In exchange, DCR agreed that the third development "does not require a DCR permit or financial assistance from DCR," and that "construction and occupancy . . . may proceed immediately upon execution of [the] MOU." On June 5, 2009, the Secretary issued an advisory opinion that the third development is not subject to MEPA as long as the developers comply with their obligations under the MOU (2009 determination).

On October 15, 2009, the developers sold approximately seven acres of their land to the Massachusetts Water Resources Authority (MWRA), so that MWRA could construct an underground water storage facility to provide the Boston metropolitan area with additional drinking water storage and water pressure stabilization. The conveyance reduced the scope of the third development. Also in October of 2009, the plaintiffs filed the instant action seeking orders enjoining construction of the third development and declaring invalid the 2009 determination. In April of 2010, a judge in the Superior Court (not the motion judge) allowed a motion to dismiss all of the plaintiffs' claims. On appeal, the Supreme Judicial Court affirmed in part, reversed in part, and remanded the case for consideration of whether the third development violates MEPA's anti-segmentation regulations. See Fellsway I, 460 Mass. at 382-384. Following remand, the plaintiffs were allowed to amend their complaint to include factual allegations regarding the MWRA purchase.

On August 27, 2013, DCR was enjoined from proceeding with the TSIP. In September of 2013, DCR suspended its efforts to implement the TSIP and notified the developers that it would "not be able to meet the . . . commencement of construction window specified in the MOU." DCR stated that "[n]o other funds have been identified as available in future fiscal years" for completion of the TSIP, and it "affirm[ed]" that the third development "does not require and will not receive any direct or indirect financial assistance from [DCR]." "[B]ased upon [its] understanding of [the] project plans," DCR also affirmed its belief that "no permits or approvals are required from the [DCR] for [the] project."

On October 31, 2013, the MOU terminated. On December 20, 2013, the Secretary issued an advisory opinion that the third development is not subject to MEPA, "notwithstanding prior assertions of jurisdiction," because "[i]t has been designed to avoid any and all state permitting requirements or financial subsidies"; "[i]t does not propose any work in or upon any DCR-controlled parkways"; and "[i]t does not require a Permit from DCR" (2013 determination).

The plaintiffs moved for summary judgment on count I of their second amended complaint, alleging that DCR's position that the third development does not require a permit violates MEPA and that "damage to the environment" will occur as a result of DCR's abdication of its responsibilities under G. L. c. 92, § 35, to preserve and protect the scenic and historic integrity of the Commonwealth's parkways. The plaintiffs also sought summary judgment on count II of the second amended complaint, alleging that treating the TSIP, the MWRA's construction of a water storage facility, and the third development separately constitutes improper segmentation under MEPA. The developers and DCR cross-moved for summary judgment on all of the plaintiffs' claims. In a written memorandum of decision and order, the motion judge concluded that DCR no longer "could be considered a 'proponent' for purposes of MEPA by virtue of" the MOU and its traffic mitigation obligations thereunder, because it is undisputed that the MOU "has terminated and DCR has abandoned its efforts on the TSIP." Accordingly, the motion judge concluded that "the authority for the Court to entertain the claims against DCR has ended." The motion judge deferred to the Secretary's "reasonable administrative interpretation" of MEPA in the 2013 determination, and he concluded that "[t]he current iteration of the proposed project does not come within MEPA's limited jurisdiction over private projects." Judgment entered dismissing the plaintiffs' amended complaint, and this appeal followed.

Discussion. Summary judgment is appropriate where "all material facts have been established and the moving party is entitled to a judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). We review de novo the grant of summary judgment, taking the facts, "together with all reasonable inferences to be drawn from them, in the light most favorable to the nonmoving party." Bulwer v. Mount Auburn Hosp., 86 Mass. App. Ct. 316, 318 (2014).

Here, there are no material facts in dispute regarding the question of jurisdiction. General Laws c. 214, § 7A, "confers subject matter jurisdiction on the court to hear a claimed violation of MEPA, where the private project proponent and permitting authority . . . are joined as defendants." Fellsway I, 460 Mass. at 379. However, "[f]or the court to have subject matter jurisdiction over the [plaintiffs'] claims against DCR, and not solely the developers, the DCR would have to meet the definition of a project 'proponent.'" Id. at 378 n.23. A "proponent" is "[a]ny Agency or Person . . . that undertakes, or has a significant role in undertaking, a Project." 301 Code Mass. Regs. § 11.02(2) (1998). It is undisputed that DCR will not be implementing the TSIP, that it has no future plans to allocate funds toward the TSIP, and that, upon expiration of the MOU, DCR "will not look to spend any other Department funds on area improvements." There being no facts in the record to support an inference that DCR has or will have "a significant role in undertaking" the third development, the motion judge correctly concluded that DCR is not a "proponent."

The plaintiffs' claim that DCR and the developers are violating MEPA also fails, because the Secretary's determination that the third development falls outside the scope of MEPA is not subject to review. See Fellsway I, supra at 377. Even if it was, the 2013 determination was based upon the Secretary's analysis of the proposed project and its history, prior advisory opinions, DCR's interpretation of its own regulations, over 200 comments received from residents, and MEPA's statutory and regulatory mandates. We "accord[] 'substantial deference'" to the Secretary's determination that the third development is not subject to MEPA, id. at 383 n.26, quoting from Anawan Ins. Agency, Inc. v. Division of Ins., 459 Mass. 592, 596 (2011), and the Secretary's reliance on DCR's interpretation of its regulations was not arbitrary and capricious, even though DCR changed its position with respect to whether the third development will require "agency action." DCR explained that its position changed due to the reduced scope of the third development, and "the requirement of 'reasoned consistency' . . . does not mean that the [DCR] may never deviate from its original position." Robinson v. Department of Pub. Util., 416 Mass. 668, 673 (1993), quoting from Boston Gas Co. v. Department of Pub. Util., 367 Mass. 92, 105 (1975).

The plaintiffs' allegations of improper segmentation are unavailing; while "the proponent of a private project and any participating agency 'may not phase or segment a Project to evade, defer or curtail MEPA review[,]'" Fellsway I, 460 Mass. at 370, quoting from 301 Code Mass. Regs. § 11.01(2)(c) (1998), it is undisputed that the third development will require neither a permit nor financial assistance from DCR. Accordingly, DCR is not a "participating agency" as that term is defined in regulations promulgated under MEPA. See 301 Code Mass. Regs. § 11.02(2) (1998). Allegations that the developers are receiving financial assistance from MWRA in the form of improvements that also benefit the third development is rebutted by the developers' affidavit, to which the plaintiffs offer no response "which would establish the existence of a genuine issue of material fact in order to defeat a motion for summary judgment." Pederson v. Time, Inc., 404 Mass. 14, 17 (1989). Absent any evidence which would support an inference of cooperation, the plaintiffs' allegations that permits granted to MWRA in connection with its water storage work should be imputed to the developers is insufficient to defeat the defendants' motion. See Flesner v. Technical Communications Corp., 410 Mass. 805, 818 (1991) (unsupported statements of belief are "insufficient to survive a summary judgment motion").

Judgment affirmed.

By the Court (Carhart, Maldonado & Henry, JJ.),

/s/

Clerk Entered: September 26, 2016.