Yesterday, the SJC issued its eagerly awaited decision in Ten Persons of the Commonwealth v. Fellsway Development. I think that the SJC probably got it right. It says something about MEPA jurisprudence, however, that the decision is good for neither citizen plaintiffs nor for developers. I’d suggest that the legislature go back to the drawing board, but it won’t happen and, if it did, I wouldn’t trust the legislature to get it right.
Fellsway Development involves an proposed development within the Middlesex Fells Reservation. After running into certain obstacles, the developers reconfigured their project to avoid the need for any permits and thus any MEPA review. To do so, they eliminated any roadway changes that would have required approval from the Department of Conservation and Recreation. DCR initially concluded that it still had to perform some roadway changes itself in order to mitigate adverse traffic impacts. EEA, in turn, concluded that such changes by DCR would constitute financial assistance to the project, which would bring it back into the MEPA universe.
Fellsway Development had a creative solution to that determination. It entered into an MOU with DCR pursuant to which DCR would do the work, so the project would not require a permit, but Fellsway Development would pay for the work, so that it would not be receiving any financial assistance. EEA blessed the deal with an advisory opinion concluding that MEPA review would not be required.
The unhappy citizen protectors of the Reservation were not so pleased. They sued, arguing that the advisory opinion was wrong, and that the MOU constituted both a form of permit and that it constituted improper “segregation” of the project, because, whatever Fellsway Development said, the roadway improvements were really a necessary part of the project.
Following its decision in Cummings v. Secretary of Environmental Affairs, the SJC concluded that the EEA Secretary is not subject to suit under Chapter 214, § 7A, because he cannot cause “damage to the environment” by making a flawed ruling under MEPA. This decision is almost certainly right under Cummings, but that doesn’t mean that it’s not nuts. In traditional administrative law terms, this case – and all MEPA cases – are about whether the Secretary’s decision was arbitrary and capricious. How is it that our case law has thus determined that the Secretary is not a proper party to the case?
The SJC also handed one victory to developers, by making clear that Chapter 231A, the declaratory judgment statute, does not provide standing to citizen plaintiffs. The court reiterated that:
We discern nothing in MEPA’s language, purpose, or administrative scheme, however, to suggest a legislative intent to confer standing on residents who bring suit alleging a generalized harm to nearby property.
Unfortunately, this was largely a pyrrhic victory for the developers, because the SJC concluded that the citizens had stated a claim under Chapter 214 7A, adequately alleging that DCR and Fellsway Development had violated MEPA by improperly segmenting the project. In a backhanded compliment, the SJC stated that “we do not suggest that the Secretary’s opinion [that no MEPA review was required] is unpersuasive.” Instead, the Court just fell back on the generous pleading requirements of Rule 12. While giving a nod to recent decisions imposing more rigorous pleading requirements – “We look beyond the conclusory allegations of the complaint” – the SJC nonetheless concluded that “plaintiffs have pleaded facts sufficient to support a claim that the DCR and the developers delayed specific roadway alterations, which might otherwise require a permit, in order to ‘phase or segment a Project to evade, defer or curtail MEPA review.’”
What’s the bottom line?
- The Secretary still will not be a party to cases asserting his/her MEPA decisions were wrong.
- Developers remain at risk of having projects delayed because courts bend over backwards to give those challenging MEPA or permitting decisions their day in court.