A recent Superior Court decision may significantly affect how appeals are conducted in MEPA cases. In Canton v. Paiewonsky, Judge Fabricant ruled that Canton’s challenge to the MEPA certificate for the Westwood Station project was filed too late, because it was not filed within 30 days of the issuance of the first permit issued to the project, even though the first permit had nothing to do with the basis for Canton’s challenge to the MEPA certificate.
First, a bit of disclosure: this firm represents the Town of Canton in this case. Nonetheless, I truly believe that, unless I were representing Westwood Station, I would think that this decision is plainly wrong and will have several adverse consequences, even if we had no connection to the case.
The basis for the decision is the language in the MEPA statute, which provides that an action to challenge a MEPA certificate “shall commence no later than thirty days following the first issuance of a permit or grant of financial assistance by an agency.” The court concluded that this language is plain on its face – end of inquiry.
Canton made two arguments. The Court gave them both short shrift. Canton noted that the first permit, a beneficial use determination, or BUD, by MassDEP, was not the subject of public notice, so the limitations period almost certainly would run before any member of the public were aware that it had even started. The court’s solution was simple, if totally unrealistic and impractical – “properly timed public records requests.”
Canton’s second argument was that it had no basis to sue on issuance of the BUD, because it had no concerns about the BUD, which was irrelevant to Canton’s claims that the MEPA certificate was flawed. In other words, Canton suffered no injury from issuance of the BUD, so it had no standing to sue. Canton’s concerns were largely about traffic issues. The Court largely ignored the case law cited by Canton, on the ground that those cases did not address the statute of limitations issue explicitly.
Interestingly, the Highway Department did not join in Westwood Station’s motion to dismiss, perhaps because the Department realized that, outside the four corners of this case, the decision does no one any good. First, with respect to the notice issue, resource-constrained state permitting agencies will certainly have to respond to many more public records requests. As a practical matter, even with more requests, it will be impossible for interested parties to know about all the approvals issued to development projects.
Even developers, aside from Westwood Station, will not benefit from this decision, because the result will be to force potential challengers into court early, increasing transaction costs and potentially making amicable resolution of development challenges more difficult. The court’s willingness to ignore the real ripeness issue will require project proponents to bring suit on issuance of the first approval, even if negotiations are still proceeding on the approval that really matters.
Sometimes a plain reading is not quite as plain as a judge thinks it is.