Appeal Remains Under Review for Fells Environmental Lawsuit
The appeal filed late last year in the lawsuit aimed at restoring MEPA environmental of impacts from the Langwood Commons development project at the former hospital site is expected to be heard this spring in the Massachusetts Appeals Court. If the Appeals Court asks for argument on the briefs filed late last year, it is likely to be scheduled in the next few months.
The suit filed by Friends of the Fells, ten individual citizens, and the City of Medford seeks to counteract the attempt by the developers – with the concurrence of the Department of Conservation and Recreation (DCR) – to proceed with the development without completing environmental impact review of the impact that 4,500 new daily traffic trips would have on historic parkways and the Fells Reservation.
The legal challenge asks the Court to rule that the developers are violating state environmental laws by attempting to evade MEPA review through improper segmentation of their development from the project’s traffic impacts The case also asks the Court to determine that DCR is violating MEPA by failing to ensure that the Fells’ parkways are safe
and protected from alterations that would adversely affect their scenic and historic characteristics.
Prior to 2009, DCR and the Secretary of Energy and Environmental Affairs had rejected the developers’ attempts to avoid completing environmental review by insisting that under state law the developers are required to complete the MEPA process to identify a reduced scale for the project before commencing any construction.
In a June 2008 letter, DCR insisted that “mitigation measures, respecting the scenic that and historic integrity of the Middlesex Fells Parkway system, must be implemented to address public safety risks directly posed by development of the project.” At that time, the development would have added 5,000 new daily traffic trips. In an Advisory Opinion issued July 3, 2008, the Secretary informed the developers that their project remained subject to MEPA jurisdiction even if they refused to seek a DCR permit to perform traffic mitigation work and verified that “DCR has a statutory obligation to ensure that its roads are ‘reasonably safe and convenient for travelers.”
In a letter to the environmental affairs Secretary dated June 4, 2009, the developers reported that traffic would be reduced from 5,000 to 4,500 daily trips.
On September 18, 2013, DCR reversed its early position in a letter, citing the change from 5,000 to 4,500 daily trips, claiming “much has changed in the development of your separate project since 2008 and your project has been scaled back considerably since that time.” DCR dismissed as “prior misapprehensions” its insistence prior to 2013 that “mitigation measures, respecting the scenic that and historic integrity of the Middlesex Fells Parkway system, must be implemented to address public safety risks directly posed by development of the project.”
Instead, based solely on the small decrease in projected traffic, DCR stated that the developers’ project could proceed without any parkway mitigation at all. In December 2013, the Secretary’s MEPA Director cited this DCR letter in a new Advisory Opinion that removed the project and its impacts from MEPA jurisdiction, thereby voiding the developers’ MEPA obligation to present a reduced-scale project plan that could be built without bringing harm to the parkways.
Parkways impacts after the project is built
Allowing the developers to build their project at its current scale would result in worsening traffic congestion and safety problems for the parkways. This would then force DCR either to demand that the developers obtain a permit to modify the parkways after the project is built, or to undertake extensive parkway changes using taxpayer funds. With traffic at such a large volume, there would be no way to prevent traffic alterations that would harm the scenic and character-defining features of the adjacent historic parkways.
This “segmentation” of the development project from its expected impacts in order to evade MEPA environmental review is at the heart of the lawsuit which aims to restore the Langwood Commons project to MEPA jurisdiction so as to minimize and prevent damage to the environment in the Middlesex Fells Reservation.
Friends of the Middlesex Fells Reservation
March 4, 2016