Newman v. City of Malden

8 Mass. L. Rptr. 513
CourtMassachusetts Superior Court
DecidedJune 16, 1998
DocketNo. 982754
StatusPublished

This text of 8 Mass. L. Rptr. 513 (Newman v. City of Malden) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Newman v. City of Malden, 8 Mass. L. Rptr. 513 (Mass. Ct. App. 1998).

Opinion

Brassard, J.

The plaintiffs, ten residents of the City of Malden, bring this action pursuant to M.G.L.c. 214, §7A and M.G.L.c. 231A requesting the court to (1) declare, as a matter of law, that construction of a school on the grounds of Newman Park constitutes damage to the environment, (2) enjoin the defendants from taking any action that permanently alters or adversely impacts Newman Park, (3) order the City of Malden to maintain Newman Park so it does not deteriorate from its present condition, (4) declare the review process by the Department of Education null and void, and (5) order a new review process by the Department of Education.

Presently before the court is the plaintiffs’ request for a preliminary injunction to enjoin construction of a school. After a review of the papers, and after a full hearing, the Court denies the application of the plaintiffs for a preliminary injunction to halt construction of the new school on a portion of Newman Park in Malden.

BACKGROUND

The facts set out in the submissions by the parties are as follows: The City of Malden has commenced the Malden Schools Program (“the Program”), a comprehensive program to improve the Malden Schools in order to address serious problems which include inadequate facilities and de facto racial segregation of the school population in the kindergarten through six grade (“K-6”) level resulting from the present school district arrangement.

The Program calls for phased closing and replacement of all the existing K-6 facilities. In planning this Program, the City of Malden considered school siting issues in conjunction with plans to improve and/or develop park, playground and recreational facilities. In determining locations for all the new schools, Malden had several objectives in mind including (1) geographic distribution so that all students would live within % of a mile of a new school and (2) preference for sites in which adjacent park land could be improved. The proposed location for the Newman Park School calls for construction on a portion of the existing Newman Park site and the plan includes creation of a new 4.35 acre park at the existing Lincoln School site nearby.

The cost of the Program is estimated at $100 million and Malden has submitted applications to the Commonwealth of Massachusetts Department of Education (“DOE”) to fund ninety percent of the cost of the five schools. Financing has been committed for the Roosevelt Park and Beebe schools and financing has been approved and is expected to be committed in August of 1998 for the Newman Park, Linden and Forestdale schools. Once the funds are committed from DOE, construction must commence within one year.

Due to the complexity of the program, the Massachusetts Secretary of Environmental Affairs determined that a full Environmental Impact Report (“EIR”) was required before commencement of construction.3 On June 2, 1997, the Secretary of Environmental Affairs certified that the Final Environmental Impact Report submitted for the Malden Schools Program “adequately and properly complies with the Massachusetts Environmental Policy Act (G.L.c. 30, §§61-62H) and with its implementing regulations (301 CMR 11.00).” Affidavit of Mayor Howard at Exhibit C. Further this certificate stated the following:

As set forth in my certificate on the Draft EIR, my primary concern with the use of Newman Park as a school site was the threat imposed on the historic integrity of the Frederick Law Olmsted design. Subsequent research done by the City and presented in the Final EIR has revealed that although Olmsted prepared a plan for the park, his design was either not implemented or has been severely altered by subsequent modifications except for the tree plantings on the perimeter of the site. The tree plantings [514]*514will remain even after implementation of the school project. This information removes the historic issue from the table. Although I acknowledge the concerns of the abutters, and others, with the issue of Newman Park, I find the environmental issues associated with the use of Newman Park are minimal in light of the plan to replace the lost parkland elsewhere.

Affidavit of Mayor Howard at Exhibit C.

Subsequent to approval and receipt of the Certificate from the Secretary of the Executive Office Environmental Affairs, the City of Malden obtained Article 97 authority from the State Legislature to allow the City to use a portion of Newman Park for a new school.

Pursuant to the requirements of M.G.L.c. 149, the City developed a bid proposal. On May 26, 1998, The Granger Company’s bid was selected. June 19, 1998, is the deadline for execution of a contract for the project.

Plaintiffs now request an injunction that would prevent construction of the Newman Park School. They argue that Newman Park has historical significance, that its replacement constitutes a violation of G.L.c. 30, §61, and that this statutory violation entitles them to the injunctive relief they seek pursuant to G.L.c. 214, §7A. The defendants oppose the request for a preliminary injunction. They argue that the plaintiffs have not shown a likelihood of success on the merits of their claim, that Malden will suffer irreparable harm if the preliminary injunction is granted, and that the injunctive relief requested by the plaintiffs is contrary to the public interest.

DISCUSSION

I. The Standard

A preliminary injunction is warranted if the moving party establishes both a likelihood of success on the merits of the claim, and a substantial risk of irreparable harm in the absence of an injunction. Packaging Industries Group, Inc. v. Cheney, 380 Mass. 609, 617 (1980). If these factors are established, the Court must balance them against the harm that the injunction will inflict on the opposing party, including impact on the public interest. See T&D Video, Inc. v. City of Revere, 423 Mass. 577, 580 (1996).

The inquiry should not focus on determining the “raw amount of irreparable harm" each party might suffer, “but rather the risk of such harm in light of the party’s chance of success on the merits.” Packaging Industries Group, Inc. v. Cheney at 617.

The Court has considered carefully the likelihood of success by the plaintiffs on their claims, the balance of harms with respect to all parties, and the public interest with respect to the proposed injunction and concludes that the application for an injunction should be denied.

II. Likelihood of Success

The plaintiffs have not established a likelihood of success on the merits. The plaintiffs argue they are entitled to the injunctive relief they seek pursuant to M.G.L.c. 214, §7A. That statute provides a remedy to ten persons domiciled within the Commonwealth to prevent “damage to the environment.” Specifically, §7A “grants to the Superior Court the power to enjoin any person causing or about to cause damage to the environment, provided that such damage constitutes ‘a violation of a statute, ordinance, by-law or regulation the major purpose of which is to prevent or minimize damage to the environment.’ ” Boston Investments Limited v. Secretary of Environmental Affairs, 35 Mass.App.Ct. 391, 392 (1993), citing to M. G. L. c. 214, §7A. The plaintiffs assert that the statute violated by the City is the Massachusetts Environmental Policy Act, M. G. L. c. 30, §61.

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Related

Packaging Industries Group, Inc. v. Cheney
405 N.E.2d 106 (Massachusetts Supreme Judicial Court, 1980)
Flint v. Commissioner of Public Welfare
589 N.E.2d 1224 (Massachusetts Supreme Judicial Court, 1992)
T & D Video, Inc. v. City of Revere
670 N.E.2d 162 (Massachusetts Supreme Judicial Court, 1996)
Merisme v. Board of Appeals on Motor Vehicle Liability Policies & Bonds
539 N.E.2d 1052 (Massachusetts Appeals Court, 1989)
Boston Investments Ltd. v. Secretary of Environmental Affairs
619 N.E.2d 991 (Massachusetts Appeals Court, 1993)

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Bluebook (online)
8 Mass. L. Rptr. 513, Counsel Stack Legal Research, https://law.counselstack.com/opinion/newman-v-city-of-malden-masssuperct-1998.