Massachusetts Land Use Monitor - Real-time news & commentary on Massachusetts land use & real estate law

The Appeals Court's recent decision in Conservation Commission of Brockton v. Department of Environmental Protection presents a relatively rare instance where local and state regulators disagree about the administration of a statute under which they both have responsibilities.  The statute is the Wetlands Protection Act (WPA).  Under the WPA, a local conservation commission is the initial permitting authority, subject to the superseding authority of the state Department of Environmental Protection (DEP). 

The case concerns an application by Brockton Power Company, LLC (Brockton Power) to build a 350-megawatt power plant within 100 feet of bordering vegetated wetlands on the Salisbury Plain River.  As part of its operation, Brockton Power will purchase 1.9 million gallons per day (gpd) of treated effluent from the Brockton Advanced Wastewater Reclamation Facility (Brockton Water).  If not sold to Brockton Power, this effluent would be discharged to the river (as it is presently) pursuant to a surface water discharge permit issued jointly by DEP and the U.S. Environmental Protection Agency.  If sold to Brockton Power, only 0.3 million gpd will be returned to the river.  The remaining 1.6 million gpd would be dispersed to the air as steam.  As noted by the Appeals Court, the loss of 1.6 million gpd of clean effluent discharge to the river “is a matter of potential consequence.”

Brockton Power filed an application for a wetlands permit with the Brockton Conservation Commission, but only because the plant would be built within the so-called buffer zone that extends 100 feet from the wetlands. The application did not address the purchase of treated effluent from Brockton Water or the impact on the river of reducing the effluent discharge by 1.6 million gpd.  The Conservation Commission denied the application. The reasons for denial included Brockton Power's failure to address this impact. 

Brockton Power obtained a superseding order of conditions from DEP which overturned the Commission’s decision.  DEP reasoned that (a) the use of effluent was not an alteration of a wetland if Brockton Water stayed within the effluent limits of its discharge permit; and (b) Brockton Water, not Brockton Power, was responsible for the impact (if any) of reducing effluent discharge by 1.6 million.  DEP’s adjudicatory branch agreed, as did the Superior Court and the Appeals Court.  The question was whether the purchase of effluent by Brockton Power was “work” in, or “alteration”  of, a wetland within the meaning of the WPA.  DEP and the courts responded by determining that, insofar as there is an alteration, the supplier of the effluent (Brockton Water) and not the purchaser (Brockton Power) is responsible.

On one level, this makes sense.  Brockton Water is the entity deciding to divert 1.9 million gpd of permitted discharge to Brockton Power.  On another level, however, the case is baffling.  For one thing, neither the Appeals Court nor DEP accounts for the 0.3 million gpd that Brockton Power will discharge into the river after buying 1.9 million gpd from Brockton Water.  This, in and of itself, is a potential direct alteration of wetlands that may be enough to force Brockton Power to consider all of the effects of its use of the 1.9 million gpd it gets from Brockton Water.  Likewise, it’s reasonable to inquire whether some portion of the 1.6 million gpd dispersed as steam will find its way directly back into the river (and if so, what if any potential contaminants are in the steam).  The decision that Brockton Water – not Brockton Power – is fully responsible for all impacts arising from this purchase seems too simple an answer to the complex questions raised.

Tremont Crossing, a project that recently filed for approval from the Boston Redevelopment Authority (BRA), is a $300 million mixed use development slated for construction on 8 acres of land on Tremont Street in Roxbury.  The project filing follows the groundbreaking of the Dudley Municipal Center and is proposed for a long-neglected but strategically located parcel that is an an important piece of the long-planned renaissance for the neighborhood.  Besides being a transit-oriented development along the Orange Line, the project fills in land along the infamous Southwest Corridor that was once targeted for a cross-city highway that would have torn apart several neighborhoods, like the old Central Artery once did.

Tremont Crossing's mix of uses will include approximately 500,000 square feet of large retail, which may also include entertainment and recreational uses, 50,000 square feet of smaller shops and boutiques fronting Tremont Street, 200,000 square feet of office space, 240 units of multi-family residential, and 58,000 square feet of cultural facilities that primarily will house a new museum for the National Center for Afro-American Artists. The development will also include a large public plaza and a multi-level, 1700-space parking structure that will serve the project, the adjacent Whittier Street Health Center, and the new Boston Public Schools Headquarters to be located at the Dudley Municipal Center.

In keeping with the BRA's focus on developing lively streetscapes open to the public, the museum and cultural space will be the centerpiece of this development, and the public plaza will include sculptures and outdoor seating – a stunning departure for vacant land that was once to be part of a neighborhood-killing highway. 

Good news for Massachusetts real estate lawyers who use a Kindle, Nook or other e-reader: the Massachusetts Trial Court Libraries has announced the availability – at no charge – of an e-book containing the Land Court's Rules, Standing Orders, Manual of Instructions for the Survey of Lands and the Preparation of Plans, and Guidelines on Registered Land.  This handy resource can be downloaded here.

In November, 2010, we reported on the Appeals Court’s decision in 81 Spooner Road, LLC v. Zoning Board of Appeals of Brookline (pdf).  The court found that the defendant’s effort to rebut the plaintiff abutter’s presumption of standing – an effort that was based solely on the abutter’s deposition testimony, in which he offered his own unsupported opinions that he had been harmed – was not the type of "affirmative evidence" required to rebut the presumption.  In other words, in the Appeals Court's view, the defendant in a zoning appeal couldn't rely on the abutter's own statements to rebut the presumption.  The court also upheld the Land Court's decision concerning the application of "infectious invalidity."

The Supreme Judicial Court (SJC) granted the defendant’s application for further appellate review, which was limited to the standing issue.  While agreeing with the result of the Appeals Court’s decision, the SJC wasn't happy with the path the Appeals Court took to reach that result.  The Appeals Court’s decision suggests that a defendant can never rely on the abutter’s deposition testimony to rebut the presumptive of standing.  The SJC disagreed, and in a March 20, 2012 decision (pdf), found that in certain circumstances, the defendant may use an abutter’s deposition testimony to rebut the presumption.

As the SJC notes, “where a plaintiff acknowledges during discovery a lack of substantive evidence to establish a legally cognizable injury, a defendant may rely on those admissions to rebut the plaintiff’s presumption of standing . . . ."  The SJC cites its own 2006 decision in Standerwick v. Zoning Bd. of Appeals of Andover (pdf) on this point.  In 81 Spooner Road, unlike in Standerwick, the abutters' deposition testimony did identify a legally cognizable injury:  violation of density-related provisions of the zoning bylaw.  Thus, that deposition testimony didn't constitute evidence “warranting a finding contrary to the presumed fact” of aggrievement, and the defendant – in the SJC's view – failed to rebut the presumption of standing.

In a rare unanimous decision issued on March 21, the U.S. Supreme Court ruled that property owners and other regulated parties can challenge administrative compliance orders issued by the Environmental Protection Agency (EPA) under the federal Clean Water Act (CWA).

The case involves the attempt a pair of Idaho landowners to challenge an EPA compliance order requiring them to take remedial action in response to alleged wetlands violations or face civil penalties of $75,000 per day.  When the EPA refused to hold an agency hearing on the matter, the Sacketts sued.  The EPA argued that judicial review of the compliance order was unavailable, and that the Sacketts had to wait until the agency filed a civil enforcement action against them to contest the order.  The 9^th Circuit Court of Appeals agreed with the EPA, and the Supreme Court has now reversed.  For more background, see our prior commentary here.

The Court, in an opinion written by Justice Antonin Scalia, ruled that an administrative compliance order can be challenged as a final agency action under the federal Administrative Procedure Act (APA) because the order is binding on the recipient, it represents the conclusion of the agency’s decision-making process on the issue, and the recipient has no other adequate remedy in a court.  The Court further noted that the CWA doesn't expressly preclude judicial review under the APA.

The Sackett decision has aroused a fair amount of interest in the mainstream press.  A few of the many stories that have appeared over the past 10 days are here (CNN), here (L.A. Times) and here (HuffPo). 

While certainly a victory for the regulated community, the Court’s decision is, in fact, rather narrow.  The decision was based solely on the language in the CWA and the intent of the APA, and did not reach the due process issues inherent in the Sacketts’ case.   As Justice Samuel Alito pointed out in his concurring opinion, given the uncertainty about jurisdiction under the CWA, and in light of the draconian penalties imposed for the type of violation alleged in this case, “the Court’s decision provides a modest measure of relief”, and, in reality, most property owners still will need to deal with EPA in the CWA enforcement context.

However, as noted in our previous post, the EPA's loss in Sackett could curtail pre-enforcement review under a variety of federal environmental statutes.   In its decision, the Supreme Court specifically noted that "[n]othing in the [CWA] expressly precludes judicial review under the APA or otherwise.” (emphasis in original).  The Court’s reliance on this fact seems to signal that the EPA is no longer able to rely on compliance orders as a streamlined means of enforcing  any environmental statute that does not contain an express bar to pre-enforcement review.   Thus, while the decision obviously impacts enforcement under the CWA, other statutes, such as the Clean Air Act and the Resource Conservation and Recovery Act (RCRA), which similarly contain no express bar, are also likely to be affected.  The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), which does contain an explicit prohibition on pre-enforcement review, should be unaffected by Sackett.

As for the Sacketts themselves, it remains unclear whether this procedural victory ultimately will clear the way for their proposed residence on Idaho's Priest Lake (pictured above).  The Court made clear that it was expressing no opinion as to whether the EPA had properly asserted jurisdiction over the Sacketts’ land, and Justice Ruth Bader Ginsberg wrote separately to underscore this point.