Town of Canton v. Paiewonsky

25 Mass. L. Rptr. 378
CourtMassachusetts Superior Court
DecidedDecember 8, 2008
DocketNo. 084748BLS2
StatusPublished

This text of 25 Mass. L. Rptr. 378 (Town of Canton v. Paiewonsky) 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
Town of Canton v. Paiewonsky, 25 Mass. L. Rptr. 378 (Mass. Ct. App. 2008).

Opinion

Fabricant, Judith, J.

INTRODUCTION

This action arises from the proposed Westwood Station project, a large mixed-use development project proposed for a location in Westwood on the Canton line. The Town of Canton, concerned about traffic impact of the project, seeks judicial review of a determination of the Secretary of Energy and Environmental Affairs (“the Secretary”) certifying a Final Environmental Impact Report for the project, and of a finding made by the Commissioner of the Massachusetts Highway Department (“MassHighway”). Cabot, Cabot & Forbes (“CCF”), the project proponent, contends that Canton’s complaint is untimely, and seeks either dismissal or summary judgment on that ground. After hearing, and review of all materials, the motion will be allowed, and the complaint will be ordered dismissed as to all defendants.

BACKGROUND

The record before the Court provides the following factual and procedural background. The project as proposed provides for the use of Dedham Street as one of two primary means of automotive access to the site, with a northbound exit ramp from Interstate 95 onto Dedham Street to be constructed. Dedham Street runs through Canton, crossing bridges over MBTA tracks and the Neponset River. Use of Dedham Street as proposed will increase traffic on the bridges and in the surrounding area. Construction of the new exit ramp will require a permit from the Massachusetts Highway Department.

On or about January 17, 2007, CCF filed a Draft Environmental Impact Report (“DEIR”) with the Secretary. The draft acknowledged the traffic impact of the project on Dedham Street, and proposed mitigation. Canton commented on this aspect of the DEIR, as did MassHighway and the Executive Office of Transportation and Public Works (“EOTj. The Secretary directed CCF to provide additional investigation and analysis of the issues raised and propose a solution. Thereafter, Canton participated in consideration of the issues in the context of a steering committee convened by EOT.

On September 17, 2007, CCF submitted the Final Environmental Impact Report (“FEIR”), pursuant to G.L.c. 30, §61 and 62 A-H. Canton again commented, criticizing the FEIR as providing inadequate traffic mitigation for Dedham Street. The Secretary issued an FEIR Certificate, pursuant to G.L.c. 30, §62C, dated November 1, 2007, certifying that the FEIR adequately and properly complied with the Massachusetts Environmental Policy Act (“MEPA”) and regulations thereunder. The certificate set forth conditions, including specified traffic mitigation for Dedham Street. It also included a list of permits and notices of various kinds that would or might be required before work could proceed; on the list was a sewer connection permit from the Department of Environmental Protection. On November 21, 2007, Canton filed written notice of its intent to commence an action for judicial review of the Secretary’s certification of the FEIR, pursuant to G.L.c. 30, §62H.

On January 24, 2008, the Department of Environmental Protection issued a Sewer Connection Permit, accompanied by a finding under G.L.c. 30, §61, as forecasted in the Secretary’s certificate of approval of the FEIR. This was the earliest issuance of any of the permits listed in the Secretary’s certificate. It was not, however, the earliest issuance of any permit for the project; that had occurred several weeks earlier, on December 13, 2007, when the Department of Environmental Protection issued a “Beneficial Use Determination,” pursuant to 310 C.M.R. §19.00, authorizing the use of paint-coated crushed rubble as fill for site preparation. DEP did not publish notice of the issuance of either of these permits, nor did it notify Canton directly; Canton does not suggest that any rule or policy required it to do so.

On or about September 25, 2008, MassHighway issued its finding pursuant to G.L.c. 30, §61, based on the FEIR certified by the Secretary. The finding recites that the project proponent will apply for permits for road work from Mass Highway as well as from the Towns of Canton and Westwood. It outlines the traffic impact the project will have, and the mitigation measures planned as set forth in the FEIR, as well as MassHighway’s own plans for roadway improvements in the affected areas. It concludes with the statutorily required finding that “with implementation of the mitigation measures described above, all practicable means and measures will be taken to avoid or minimize adverse traffic and related impacts to the environment.”

Canton filed this action on October 24, 2008, and amended its complaint on October 31, 2008. The amended complaint sets forth two counts, each of which challenges both the Secretary’s certification of the FEIR and MassHighway’s findings. Count I alleges that both fail to require adequate traffic mitigation, and count II alleges that both fail to consider reasonable alternatives. The complaint seeks injunctive relief to prevent the issuance of a permit for a northbound exit ramp from interstate 95 onto Dedham Street unless certain alternatives are considered and certain mitigation measures are required, and a declaration that the issuance of such a permit would violate MEPA. CCF contends that both counts of the complaint are time-barred under G.L.c. 30, §62H, and [380]*380must be dismissed on that ground pursuant to Mass.R.Civ.P. 12(b)(1).

DISCUSSION

General Laws c. 30, §62H, provides a mechanism for judicial review of the Secretary’s certification of an FEIR, subject to three requirements. First, a person “intending to commence an action or proceeding alleging that a final environmental impact report fails to comply” with statutoiy requirements must give notice within sixty days of issuance of the Secretary’s certification. Second, the action “shall commence no later than thirty days following the first issuance of a permit or grant of financial assistance by an agency for a private project. . .” Third, “the matter complained of’ must have been “raised at the appropriate point in the administrative review procedures.” CCF’s contention here is that the first issuance of a permit was either the December 13, 2007, beneficial use determination, or the January 24, 2007, sewer use permit, so that the statutoiy limitations period had run not later than February 25, 2007, some eight months before Canton filed suit. CCF focuses on the sewer use permit because it was presaged in the FEIR certification; its legal theoiy would apply as well to the beneficial use determination. 1

The Supreme Judicial Court has described c. 30, §62H as a “statute of limitations.” Cummings v. Secretary of Environmental Affairs, 402 Mass. 611, 613 (1988); see also Walpole v. Secretary of the Executive Office of Environmental Affairs, 405 Mass. 67, 70 (1989). The triggering event for the thirly-day statutoiy limit is the “first issuance of a permit.” The short time limit, and the early trigger, serve the recognized statutory purpose “to immediately expedite environmental approvals,” so as to avoid the “potential unfairness and social and economic loss that may result from the delay inherent in litigation.” Cummings, supra, at 617, quoting St. 1977, c. 947; see Hull v. Massachusetts Port Authority, 441 Mass. 508, 516-17 (2004).

Where statutory language is plain and unambiguous on its face, the Court’s obligation is to apply it according to its terms. See, e.g., Pyle v. School Comm. of S. Hadley, 423 Mass. 283, 285 (1996).

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Related

Cummings v. Secretary of Environmental Affairs
524 N.E.2d 836 (Massachusetts Supreme Judicial Court, 1988)
Cappuccio v. Zoning Board of Appeals of Spencer
496 N.E.2d 646 (Massachusetts Supreme Judicial Court, 1986)
Town of Walpole v. Secretary of the Executive Office of Environmental Affairs
537 N.E.2d 1244 (Massachusetts Supreme Judicial Court, 1989)
Pyle v. School Committee
423 Mass. 283 (Massachusetts Supreme Judicial Court, 1996)
Enos v. Secretary of Environmental Affairs
432 Mass. 132 (Massachusetts Supreme Judicial Court, 2000)
Sierra Club v. Commissioner of the Department of Environmental Management
439 Mass. 738 (Massachusetts Supreme Judicial Court, 2003)
Town of Hull v. Massachusetts Port Authority
806 N.E.2d 901 (Massachusetts Supreme Judicial Court, 2004)

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Bluebook (online)
25 Mass. L. Rptr. 378, Counsel Stack Legal Research, https://law.counselstack.com/opinion/town-of-canton-v-paiewonsky-masssuperct-2008.