Protecting the Alewife

By Idith Haber / arlington@wickedlocal.com

Arlington Advocate

October 4, 2012 @ 04:54 PM

ARLINGTON - On July 31, 10 Belmont neighbors and two environmental organizations (the plaintiffs) filed their brief to appeal adverse decisions by the Department of Environmental Protection (DEP) and Superior Court to the Massachusetts Appeals Court.

At stake is a uniquely beautiful, but fragile, wildlife habitat and its potential enjoyment by thousands of area residents. The state Department of Conservation and Recreation is among those concerned that the proposed 300-unit development would degrade the surrounding 115-acre Alewife Reservation. Much of the building site is governed by the Massachusetts Wetlands Protection Act because the land is subject to flooding by Little Pond and Little River and contains state-protected wildlife habitat. Plaintiffs contend that solid, convincing evidence that the development plans violate the Act did not receive proper consideration because the DEP's decision contained errors of law and violated the plaintiffs' due process rights.

The DEP Presiding Officer (Beverly Coles-Roby) issued the flawed decision on her last day at that position and is no longer with the agency. Roby's and the Superior Court judge's decisions were based on errors of law resulting from misapplying the Wetlands Regulations applicable to the protection of significant wildlife habitat. Just one important example is that both the coalition's and the developer's experts agreed that a habitat area called the "upper floodplain" was significant to wildlife. The developer's experts tried to have it both ways: They counted the upper floodplain when trying to say that the development was only affecting a small portion of the surrounding wetlands (they wanted to make the denominator seem larger). But then, their lawyers tried to say that, when it came to mitigation, the upper floodplain doesn't count.

However, the experts on both sides have spoken in agreement about the significance of the upper floodplain. Without counting this habitat area, the mitigation the developer provides falls short in both quantity and quality. In a July 2 presentation to the Belmont Zoning Board of Appeals, the developer's attorney said there was no more room for more mitigation.

The Coalition to Preserve the Belmont Uplands and its co-plaintiffs are also standing up for their due process rights on behalf of hundreds of residents in Belmont, Cambridge and Arlington who have donated time and money to this cause. "Due process" refers to laws governing judicial procedures designed to ensure justice and fairness when courts make decisions. For example, a judge must provide the basis for her conclusions and cannot cherry pick evidence. Our claim in this case is that Roby violated our due process rights to 1) conduct meaningful cross-examination of the developer's witnesses; 2) have evidence elicited during four days of oral testimony considered; 3) be given a proper legal assessment of the developer's experts.

At the beginning of her decision Roby admitted that she considered the pre-filed written testimony and excluded evidence from the four-day hearings in her 40-page decision. She gave no reason for doing so. In contrast, plaintiffs showed that in another decision issued on the same day, Roby said she considered the pre-filed and oral testimony – and then went on to mention both of them in that decision.

As one pro-bono attorney following the case said: "If there was ever a case of a judge not doing her job – this was it." All we asked was that the Superior Court order the DEP to consider what happened at the hearings, including the favorable evidence elicited from the developer's witnesses when they were cross-examined.

When it came to assessing the credibility of the developer's witnesses, Roby simply asserted that she "credited" the witnesses' opinions given in pre-filed testimony because they were based on "numerous reports" and "calculations." Since she didn't point to any portion of the "reports" and "calculations" that supported their opinions and conclusions, it appears that she literally just weighed the evidence.

Roby also failed to explain the reasoning to support her conclusions about the pre-filed testimony. It was inappropriate for a Superior Court judge to then insert her own reasoning for Roby's conclusions and to make definitive conclusions herself, which Roby did not make. It is the role of the DEP to explain itself and make its own findings and conclusions, not the Superior Court. The proper procedure to remedy this and other flaws in the decision would be to send the case back to the DEP, as the Superior Court did do with a portion of the Belmont Conservation Commission's case. We've studied the evidence are confident that we will prevail.

Idith Haber is president of the Coalition to Preserve the Belmont Uplands