Boston Preservation Alliance, Inc. v. Secretary of Environmental Affairs

396 Mass. 489
CourtMassachusetts Supreme Judicial Court
DecidedJanuary 9, 1986
StatusPublished
Cited by22 cases

This text of 396 Mass. 489 (Boston Preservation Alliance, Inc. v. Secretary of Environmental Affairs) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boston Preservation Alliance, Inc. v. Secretary of Environmental Affairs, 396 Mass. 489 (Mass. 1986).

Opinion

Nolan, J.

The plaintiffs challenge a decision of the Secretary of Environmental Affairs (Secretary) that restricted the scope of the Environmental Impact Report (EIR) that the defendant developer was required to prepare in connection with the development of a project in Boston’s financial district, to be known as “International Place at Fort Hill Square.” Following a one-day bench trial in the Superior Court, the trial judge affirmed the decision of the Secretary in a commendably comprehensive memorandum and order. Judgment entered for the defendants on January 11, 1985. The plaintiffs seasonably appealed to the Appeals Court, and we transferred the appeal to this court on our own motion. We affirm the judgment.

The relevant facts, which are taken in the main from the stipulation of the parties, are summarized as follows. In 1982, by enactment of c. 190, § 24, the Legislature amended c. 486 of the Acts of 1909, as appearing in St. 1966, c. 642, § 12, by inserting, after § 31B, §§ 31C and 31D.* 4 Section 3 ID permitted the Boston Public Facilities Commission (PFC) to dispose of any or all city-owned off-street parking structures, including the real estate related thereto, as surplus property.5 On November 16,1982, the PFC voted and, pursuant [491]*491to St. 1966, c. 642, §3 (f) (ii), delegated to the Boston Redevelopment Authority (BRA) the Ml authority to study and establish goals and criteria for the disposition and potential future development of five municipal parking properties in Boston.* ****6 Included among these properties was the Fort Hill Square garage.

On January 10, 1983, the defendant Fort Hill Square Associates (FHSA) and its development agent, the Chiofaro Company, made a formal proposal to the BRA for the development of the Fort Hill Square property. On October 20, 1983, the BRA voted to recommend to the PFC the tentative designation of FHSA as “redeveloper of the Fort Hill Square Garage facility.” The PFC approved the tentative designation of FHSA on October 21, 1983, and voted, subject to the approval of the mayor, to “sell the land with building thereon located at Fort Hill Square Garage in the Downtown district of the City of Boston, to Fort Hill Square Associates.” As required by St. 1982, c. 190, § 24, the Boston city council voted on November 23, 1983, to transfer “care, custody, management and control” of the Fort Hill Square property to the PFC. See note 5, supra.

[492]*492On December 12, 1983, the PFC voted, inter alia, to sell the Fort Hill Square garage to the Boston Redevelopment Authority. The PFC further voted to authorize and empower the BRA to “take all actions deemed necessary and appropriate for the disposition of the Fort Hill Square Garage in accordance with the . . . Sale and Construction Agreement to be entered into by the City of Boston, the Boston Redevelopment Authority and the proposed Grantee [FHSA].” This transaction was approved by the mayor as required.

In addition to the above described involvement, the BRA conditionally approved FHSA’s schematic design and design development plans submitted during the design review phase of the project in April and May of 1984. Thereafter, the BRA gave final approval to the design plans for phase one of the project. At trial, during cross-examination of a witness called by the defendants, it was admitted that the BRA had granted at least six approvals to the defendants that were “absolutely essential” for the International Place project to proceed toward construction.

The plaintiffs argue that the Secretary was required, under the Massachusetts Environmental Policy Act (MEPA), G. L. c. 30, §§ 61-62H, to order a “full scope” environmental impact report (EIR) for the project. According to the plaintiffs, the EIR should have covered, in addition to the areas required by the Secretary, a study of the potential “wind, shadow, visual, historical and archaeological” impacts of the project. The plaintiffs cite three grounds for their position. First, they contend that, because State approval for the removal of the High Street ramp is or may be required, the Secretary should have included in the scope of the EIR, “all” the environmental impacts “directly or indirectly caused by State approval of the ramp removal.” The plaintiffs next state that the BRA was sufficiently involved in the transfer to FHSA of the city owned land to require a full scope EIR. Finally, the plaintiffs argue that the BRA was acting as an “agency” when it granted various approvals to FHSA, and therefore, under MEPA and the regulations promulgated by the Secretary, a full scope EIR is required for all of the impacts related to these BRA approvals. We now address the plaintiffs’ arguments.

[493]*4931. Permit-related EIR. Pursuant to G. L. c. 30, § 62A, FHSA submitted to the Secretary on May 15,1984, an environmental notification form. This is the first step in determining whether an EIR is required. If the EIR is required, the scope of the issues to be analyzed in the report is then determined by the Secretary.7

On June 21, 1984, the Secretary, pursuant to G. L. c. 30, § 62A, issued a certificate defining the scope of the EIR required for the International Place project. On June 22, 1984, he released a memorandum fully explaining the basis for his decision, and stating that he was exercising jurisdiction over “all significant environmental impacts of International Place.” The Secretary initially identified two grounds for exercising MEPA jurisdiction. First, he found that jurisdiction existed over the sewerage impacts of the project, by virtue of the two State permits “required to sewer the building.”8 Accordingly, [494]*494he ordered the FHSA to prepare an EIR analyzing the sewage generation and water usage impacts of the project.

The Secretary next determined that he could exercise jurisdiction over the traffic related impacts of the project because of the proposed relocation of the High Street ramp. Since a permit from the Massachusetts Department of Public Works would be required to accomplish this relocation, the Secretary concluded that MEPA jurisdiction could be exercised. See G. L. c. 30, § 62A. The Secretary accordingly required FHSA to analyze all of the direct and indirect transportation impacts of the project, including the impacts on traffic flow, pedestrian circulation, parking, and mass transit.

The plaintiffs contend that the Secretary erred by deciding to include only the traffic related impacts of the project in the scope of this EIR. The plaintiffs argue that the EIR should have included “all” of the environmental impacts directly or indirectly related to the ramp removal. We find no merit in this argument. General Laws c. 30, § 62A, specifically grants to the Secretary the authority to determine the form, content, and level of detail required in an EIR. See note 7, supra. The only basis under § 62A for exercising MEPA jurisdiction over the traffic impacts of the International Place project derived from the fact that a State permit from the Department of Public Works would be required to remove and relocate the High Street ramp. This requirement entitled the Secretary to exercise jurisdiction over the “traffic related” impacts of the project.

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Bluebook (online)
396 Mass. 489, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boston-preservation-alliance-inc-v-secretary-of-environmental-affairs-mass-1986.