SJC Rules Long Wharf Pavilion Is Not Subject to Article 97

Author:
Kyle Gallagher
Juris Doctor, 2013
New England Law | Boston

Mahajan v. Dep’t of Envtl. Prot., 464 Mass. 604, 605 (2013)

Summary:

This case involves the challenge of an issuance of a Chapter 91 permit by MassDEP to the Boston Redevelopment Authority (BRA) by a 10-person citizen group.[1] The SJC considers two primary issues: 1) Whether land taken by eminent domain for urban renewal purposes is subject to article 97 and 2) If article 97 does apply, may DEP issue a Ch. 91 license to the BRA without triggering the two-thirds vote of the Legislature required under article 97?[2]

Facts and Procedure:

The project site in question, Long Wharf, was originally taken in 1970 by BRA for urban renewal purposes under authority granted by the law[3] and the 1964 urban renewal plan.[4] In 1983, DEP permitted the MBTA to build emergency egress for the Blue Line, thus creating the Long Wharf Pavilion.[5] The land was subsequently placed under the Boston Municipal Harbor Plan in 1991, approved by EOEA, to revitalize the shoreline by promoting growth through private investment.[6] In 2008, the BRA proposed a plan to redevelop what they considered an underutilized project site consisting of the Long Wharf Pavilion and some of the surrounding area.[7] DEP granted the Ch. 91 license.[8] Plaintiffs appealed, alleging the proposal would create unnecessary noise, damage public open space, parkland and the scenic quality.[9] The Commissioner subsequently approved the project and the plaintiffs appealed to Superior Court, alleging the project site was subject to article 97.[10]

The Superior Court judge held in favor of the plaintiffs, stating that the aims of the urban renewal plan were consistent with article 97, and therefore the project was subject to the article.[11] Further, the judge concluded that issuance of a Ch. 91 license constituted a transfer of legal control from DEP to BRA, sufficient to effect a disposition.[12] BRA applied for direct appellate review by the SJC.[13]

Discussion:

The SJC considered whether the land was taken for article 97 purposes, not whether the use of the land incidentally serves purposes consistent with article 97.[14] Using the plain language of the article, in order to trigger the two-thirds voting requirement the project land in question must be taken or acquired for the purpose of protecting article 97 purposes.[15] The land can also be later designated for such purposes in a sufficient manner, such as a conservation restriction.[16]

Further, the SJC held that where an urban renewal plan accompanying a taking demonstrates a specific intent to reserve particular, well-defined areas for article 97 purposes, the BRA could take land for urban renewal purposes under MGL c. 121B.[17] Article 97 protections could also apply after a recording of a restriction on the use of land subsequent to taking for urban renewal purposes.[18] The ultimate use of the land may provide some evidence of purposes of a taking notwithstanding language of the original order of taking in the plan.[19] Here, while the urban renewal plan called for some land taken to be left open, the plan lacked any specific invocation of article 97 purposes unique to areas apart from the total taking.[20] A mere identification of objectives consistent with article 97 is not sufficient absent greater specificity.[21]

Finally, the SJC held that whether the issuance of a Ch. 91 license by MassDEP is considered a disposition or change in use of the land depends on whether the license is a mere license, or considered an easement.[22] Here, the Ch. 91 license certifies a planned use, but does not transfer legal control over the land.[23] In order to trigger the article 97 voting requirement, a disposition would need to be granted by BRA, the legal owner of the land, not to the BRA.[24]

Commentary:

In Mahajan, the SJC concluded via footnote that “with art. 97 inapplicable and relief in the form of mandamus therefore inappropriate, we have serious doubts whether the plaintiffs can demonstrate standing to otherwise challenge the chapter 91 license.”[25] This footnote elicited discussion on remand by Judge Fahey regarding standing in her Memorandum of Decision and Order (Relying on Board of Health of Sturbridge v. Board of Health of Southbridge[26] the Judge determined that the Plaintiffs here did, in fact, have standing.)[27]

Judge Fahey interprets the Sturbridge decision to mean that “citizens groups acquiring standing before an agency by operation of statute, but not by individualized determination, must show that at least some of the individual members of the group would suffer substantial injury as a result of the agency’s decision,” and thus “(t)his court’s inquiry is therefore have any of the [plaintiffs] shown or alleged ‘substantial injury’ to themselves that would result directly from [DEP’s] approval of the [Chapter 91] license?”[28] In her analysis, Judge Fahey directly distinguishes the facts in Sturbridge with that of Mahajan.[29] She ultimately concludes that if the additional evidence put forth by the plaintiffs shows the entire project is protected open space under article 97, they should be granted standing to challenge the Ch. 91 permit.[30]

Whether or not the plaintiffs can prove they have standing relies entirely on their ability to put forth evidence that they are considered “persons aggrieved” under 310 CMR 9.02.[31] While the Presiding Officer gave close consideration as to whether the plaintiffs had standing in the Recommended Final Decision,[32] the Commissioner’s Final Decision did not consider standing because the challenge of the permit failed on the merits.[33] In Sturbridge, the regulations in question governing standing speak directly to a Public Hearing scenario, in fact, they specifically denounce that they should be conflated with in adjudicatory hearing.[34] It might be a bit of a stretch to directly distinguish the Sturbridge holding dealing with Public Hearings to that of an adjudicatory hearing as found in Mahajan. Judge Fahey correctly notes that the plaintiffs in Mahajan have a stronger claim with significantly greater factual specificity.[35] However, simply because they had a stronger claim of standing than the petitioners in Sturbridge, does not guarantee an examiner of fact will find the Mahajan plaintiffs “persons aggrieved.”

Ultimately, it appears the issue of standing in Mahajan hinges on whether the new evidence before MassDEP demonstrates that the entire project area should be considered protected open space affording Article 97 protection.

Click Here for the SJC's Opinion

Citations

[1] Mahajan v. Dep’t of Envtl. Prot., 464 Mass. 604, 605 (2013).


[2] Id. at 605.


[3] Mass. Gen. Laws 121B §§ 4, 9 (1969).


[4] Mahajan, 464 Mass. at 607-608.


[5] Id. at 609.


[6] Id.


[7] Id. at 609-10.


[8] Id. at 610.


[9] Id.


[10] Id.


[11] Id. at 610-11.


[12] Id. at 611.


[13] Id. at 605.


[14] Id. at 614 (Referencing Selectmen of Hanson v. Lindsay, 444 Mass. 502, 508-509 (2005)).


[15] Id. at 616.


[16] Id.


[17] Id. at 619.


[18] Id.


[19] Id. at 620.


[20] Id. at 619.


[21]


[22] Id. .


[23] Id. at 621.


[24] Id.


[25] Id. at 622 (Footnote 22).


[26] In Sturbridge, a waste processing facility expansion proposal was opposed by an intervening ten-member citizen group at a public hearing before the board of health by 310 CMR § 16.20(9)(a), but the SJC held that in order for such interveners to obtain judicial review, any one of them must show some prejudice to their individual rights. Bd. of Health of Sturbridge v. Bd. of Health of Southbridge, 461 Mass. 548, 559, (2012). Further, while the regulations qualified the plaintiffs as interveners before the board, they must also show individualized standing as “persons aggrieved” to initiate judicial review. Sturbridge, 461 Mass. at 561.


[27] Memorandum of Decision and Order at 3-6, Mahajan v Mass. Dep’t of Envtl. Prot., No. SUCV2010-00802-B (Mass. Super. Ct. filed Dec. 17, 2013).


[28] Id. at 4-5.


[29] Id at 5-6. (e.g. compares the inclusion of addresses in the administrative record for Mahajan to the Sturbridge interveners vaguely stating “in the vicinity”; Mahajan is an adjudicatory hearing while Sturbridge was before a public hearing, and mentioning that the Mahajan interveners submitted individual affidavits with personal impacts, whereas the Sturbridge interveners all filed identical statements of injury.).


[30] Id at 6 (“If the plaintiffs currently have a right to use, and in fact do use, the entirety of the Project site and the Permit allows this right to be restricted, then the plaintiffs must have standing to challenge the permit.”).


[31] An “aggrieved person” is any individual who, “because of a decision by the Department, to grant a license or permit, may suffer an injury in fact, which is different either in kind or magnitude, from that suffered by the general public and which is within the scope of the public interests protected by M.G.L. c. 91…”


[32] Recommended Final Decision at 14-17, In the Matter of Boston Redevelopment Authority, No. 2008-128, 2010 WL 546524 (Mass. Dep. Env. Prot. Jan. 15, 2010).


[33] Final Decision, In the Matter of Boston Redevelopment Authority, No. 2008-128, 2010 WL 546524 (Mass. Dep. Env. Prot. Jan. 29, 2010).


[34] See 310 Code of Mass. Regs. 16.20 (“Public Hearings” pursuant to M.G.L. c. 30A are not “Adjudicatory Proceedings” within the meaning of M.G.L. c. 30A, § 1.)


[35] See Memorandum and Decision of Order at 4-5.

Supreme Court Holds Discharge from Improved Channel to Natural Channel in Same Body of Water Is Not a Discharge of Pollutants Under CWA

Author:
Jessica Bardi
J.D. Candidate, 2014
New England Law | Boston

Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc, 133 S.Ct. 710, 712 (2013).

Facts:

The LA County Flood Control District (District) operates a municipal storm sewer system that collects, transports and discharges storm water.[1] Under the Clean Water Act, the system is required to have a NPDES permit before it can discharge pollutants into the Los Angeles and San Gabriel Rivers.[2] The NPDES permit for the system required end-of-pipe monitoring at individual discharge points.[3] NRDC and the Santa Monica Baykeeper filed a citizen suit against the District alleging that the District violated its NPDES permit because water quality measurements from the monitoring points were above the regulated levels of pollution.[4]

The District Court granted summary judgment on the issue that there was insufficient evidence that the District’s system contributed solely to the elevated levels of pollution for downstream monitoring stations.[5] The Ninth Circuit reversed, holding the District liable for the discharges that violated the NPDES permit.[6] It reasoned that the District was in charge of the concrete channels, where the monitoring systems were located, and those channels were the source of the pollution into downstream waterways.[7]

The Supreme Court granted certiorari on the issue of whether “under the CWA, does a discharge of pollutants occur when polluted water flows from one portion of a river that is navigable water of the United States, through a concrete channel or other engineered improvement in the river and then into a lower portion of the same river?”[8]

Summary of the Court’s Decision:

The Supreme Court held that the flow of water from an improved portion of a navigable waterway into an unimproved portion of the same waterway doesn’t qualify as a discharge of pollutants under the CWA.[9] The Supreme Court based its decision on its holding from South Fla. Water Management Dist. v. Miccosukee Tribe.[10] In that case, the Supreme Court found that discharging polluted water from one part of a waterway to a downstream part of the same waterway was not a discharge of pollutants that should be regulated by the CWA.[11] It reasoned that “discharge of pollutants” under the CWA means “any addition of any pollutant to navigable waters from any point source.”[12] The Court said that there was no “addition” when the polluted water was being transferred to a different portion of the same waterway.[13] Only where the water bodies were different was the CWA triggered.[14]

NRDC and Baykeeper argued that the Court of Appeals was correct in its decision, but wrong in its reasoning.[15] They said that the Court of Appeals misunderstood the facts by thinking that the monitoring stations sampled polluted stormwater from the system before discharge into the Los Angeles and San Gabriel Rivers, therefore two different waterways were involved.[16] The NRDC and Baykeeper argued that there was sufficient evidence from the monitoring systems upstream and downstream to determine that the District is liable for the upstream discharge of pollutants.[17]

Editorial Comment:

1. Have any MA or fed MA courts cited the decision?

No, at the moment neither the Massachusetts state courts, nor the First Circuit have cited this decision.

2. Does the decision impact any DEP programs?

From my research, it doesn’t seem any DEP programs are vulnerable to the decision. Under 314 CMR 3.02, DEP uses the same definition of “discharge of pollutants” as the decision, which is taken directly from the Clean Water Act. There is no mention of improved or unimproved waters within the DEP regulations governing surface water and groundwater discharge permitting programs. In fact, the Massachusetts Clean Water Act essentially mimics the federal Clean Water Act. Therefore, it is unlikely the DEP programs will be effected by this decision.

3. Does the decision overrule any MA or fed MA cases?

Massachusetts state and federal courts have not decided an issue on whether water flowing from an unimproved section of a waterway to an improved part of the same waterway constitutes a discharge of pollutants under the Clean Water Act.

Click Here for the Court's Opinion

Citations

[1] Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc, 133 S.Ct. 710, 712 (2013). See also 40 CFR § 122.26(b)(8) (2012).


[2] Los Angeles, 133 S.Ct. at 712 (citing 33 U.S.C. § 1311(a) and 40 CFR § 122.26(a)(3)).


[3] Los Angeles, 133 S.Ct. at 714 n.2.


[4] Id. at 712.


[5] Id.


[6] Id.


[7] Id.


[8] Id. at 712-13.


[9] Id. at 713.


[10] Id.; South Fla. Water Management Dist. v. Miccosukee Tribe, 541 U.S. 95 (2004).


[11] Los Angeles, 133 S.Ct. at 713 (citing South Fla., 541 U.S. at 109).


[12] Los Angeles, 133 S.Ct. at 713 (quoting 33 U.S.C. § 1362(12)).


[13] Los Angeles, 133 S.Ct. at 713.


[14] See id.


[15] Id.


[16] Id. at 713-14 n.1


[17] Id. at 714 (citing Brief for Respondents 33 62).

Court Rules in Favor of MassDEP: Permit to Store Kayaks on Dune OK

Author:

Katherine Polis

Juris Doctor, 2013

New England Law | Boston

Mostyn v. Department of Environmental Protection, 83 Mass App. Ct. 788 (2013)

Facts

       The Sea Pines Condominium Association (Sea Pines) owned a lengthy stretch of beach in Brewster, Massachusetts. For many years, members of Sea Pines stored kayaks on a coastal dune located on this beach. Lot 106-2 Dune Road Realty Trust owned the property are the property owners of the area upland of where the kayaks were stored. The sole beneficiary of the trust, Joseph E. Corcoran, objected to the storage of kayaks in front of his property, as well as, the attendant foot traffic it caused.     

       The conservation commission of Brewster determined that the storage of the kayaks was an activity subject to regulation pursuant to the Wetlands Protection Act, Mass. Gen. Laws. Ch. 131, §40. Therefore Sea Pines could only continue using the land in this manner if they obtained an order of conditions allowing this type of use. The Department of Environmental Protection (DEP) issued a final decision temporarily allowing the kayak storage to resume under certain specified conditions. The Suffolk Superior Court (Massachusetts) affirmed. Corcoran then appealed to the Appeals Court of Massachusetts.

Summary

       DEP determined that the storage of kayaks by members of Sea Pine on a coastal dune was subject to regulation under the Massachusetts Wetlands Protection Act, G.L. C. 131, §40, and therefore could only continue if the owner obtained an order of conditions allowing such use. The plaintiff, Corcoran, appealed this decision by the Department of Environmental Protection (DEP). The appellate court held that the fact that 310 Mass. Code Regs §10.28(3)(1997) did not list this type of boat storage structure as an example of a permitted use on coastal dunes did not mean that this use was pro se prohibited.[1] The current degraded state of the wetlands resource area was taken into consideration in determining whether to allow kayak storage on the dune to continue. The court also held that DEP did not violate its own regulations by providing the owner temporary approval to resume kayak storage on the dune, and structuring its approval toward ensuring that the applicable performance standards are met.

        The storage of the boats and attendant foot traffic over the years had an adverse impact on the dune. Specifically, the portion of the dune was a foot or more lower in elevation than surrounding areas and was “denuded of vegetation”. This made the dune more susceptible to erosion.

        The first issue raised was whether Corcoran had standing to appeal this decision. The presiding officer determined that Corcoran was unable to demonstrate that the project would cause him harm Corcoran. Therefore, he did not have standing to appeal an adverse decision by the agency.[2] However, the court chose to focus on the second issue, the merits, as in instances “where the merits have been fully briefed and the question of standing is not outcome determinative, we decline to resolve standing and instead turn to the merits.”[3]

        Examining the merits required two separate issues to be resolved. The first issue was whether the regulation prohibits boat storage structures on coastal dunes regardless of whether the applicable performance standards would be met. The regulation lists six performance standards, while another subsection of the regulation lists three specific kinds of projects that “may be permitted provided they adhere to” those standards.[4] As with any agency, the interpretation of its own regulations is entitled to “considerable deference” and must be upheld unless it is inconsistent with the plain language of the regulation or otherwise arbitrary or unreasonable.[5] The enumeration of three specific allowable uses serves at least two functions: 1) it demonstrates three examples, while ensuring that the strict performance standards set forth in 310 Code Mass. Regs. §10.28(3) are met, and 2) since the three types of projects that are identified as approvable in §10.28(5) are limited in nature, the list serves to highlight the high degree of scrutiny that other types of projects are to be given, thus interpretation is not superfluous.

        The second issue resolved dealt with Corcoran’s argument that even if DEP could allow such structures on coastal dunes if they properly determined that the applicable performance standards would be met, it misapplied those standards here. The presiding officer identified a three-year time frame as the appropriate period for Sea Pines to demonstrate that it could both reestablish vegetation on the dune and implement seasonal kayak storage racks there without causing any ongoing adverse environmental impacts. There was nothing mentioned in the regulation that precluded DEP from adopting this temporal perspective in determining whether its performance standards would be met. Due to scientific uncertainty and a practical real world contest, there was no violation of the agency’s statutory or regulatory duties.

        Ultimately, DEP provided Sea Pines only temporary approval to resume kayak storage on the dune, and its approval was structured toward ensuring that the applicable performance standards are met.

Editorial Note

        DEP has the authority to set a temporal perspective like the one they established here, and the reviewing courts agree with this decision. As the court notes, the project put in place here is designed to try to achieve restoration on a more expedited basis than natural restoration. The fact that DEP is giving Sea Pines three years is proof that they may be using this period to give them a chance and to see what the next step will be in 2016.

 Click for the court's opinion.

Citations

 [1] 310 Code Mass. Regs. §10.28(3) (1997) provides:

“Any alteration of, or structure on, a coastal dune or within 100 feet of a coastal dune shall not have an adverse effect on the coastal dune by:

(a) affecting the ability of waves to remove sand from the dune; (b)Disturbing the vegetative cover so as to destabilize the dune; (c) causing any modification of the dune from that could increase the potential for storm or flood damage; (d) interfering with the landward or lateral movement of the dune;(e) causing removal of sand from the dune artificially; or (f) interfering with mapped or otherwise identified bird nesting habitat”.

 310 Code Mass. Regs. §10.28(3) (1997) lists three types of projects that “may be permitted, provided they adhere to those standards. The three permitted projects are “(a) pedestrian walkways, designed to minimize the disturbance to the vegetative cover and traditional bird nesting habitat; (b) fencing and other devices designed to increase dune development; and (c) plantings compatible with the natural vegetative cover”.

[2] Under DEP’s wetlands regulations, “person aggrieved” is defined as follows:

“any person who, because of an act or failure to act by the issuing authority, may suffer an injury in fact which is different either in kind or magnitude from that suffered by the general public and which is within the scope of the interests identified id [G.L.] c. 131, § 40”.


[3] See Boston Gas Co. V. Department of Pub. Utils., 368 Mass. 780, 805, 336 N.E.2d 713 (1975).


[4] See 310 Code Mass. Regs. § 10.28(3) (1997); 310 Code Regs. § 10.28(5) (1997).


[5] Warcewicz v. Department of Envtl. Protection, 410 Mass. 548, 550, 574 N.E.2d 364 (1991).