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Silver Maple Forest Civil Action Case Requests Intervention of Highest Massachusetts Court |
http://www.wickedlocal.com/belmont/news/opinions/x914330492/Latest-court-decision-has-statewide-implications
Accessed 2013-10-06 - preserved for historical reasons
Latest court decision has statewide implications
By Idith Haber - Belmont Citizen-Herald
Posted Oct 02, 2013 @ 09:16 PM
Belmont, Mass. — On Sept. 9, the Appeals Court rendered a decision holding that the plaintiffs in the Belmont Uplands case lacked standing to appeal the Department of Environmental Protection (DEP) Commissioner’s adverse decision. This decision follows an appeal of a Superior Court decision in which the judge stated that the plaintiffs had two independent grounds to the right to appeal the DEP, but disagreed with the plaintiffs about errors made in the DEP's decision. The plaintiffs are the Coalition, Friends of Alewife Reservation and 12 Belmont residents.
It is important to note that the Appeals Court made no comment on the actual merits of our case. In many other decisions in which the court has denied the standing of plaintiffs, it has also denied the merits of their case at the same time. Since, in our case, the court denied standing but did not reject the case's merits, the real possibility exists that they found merit in all or parts of our case.
The Appeals Court denied the 12 individual plaintiffs’ standing to bring a "Citizens Environmental Suit" under Massachusetts law Chapter 214, Section 7A against the developer. This law provides that "not less than 10 persons domiciled within the commonwealth" may bring an action to prevent "damage to the environment" caused by violation of an environmental law. In addition, the Wetlands Protection Act, which the DEP is charged with enforcing, specifies that a violation of the act can be reviewed by the courts when petitioned by "10 residents of the commonwealth under the provisions of section seven A of chapter two hundred and fourteen."
The Citizens Environmental Suit Statute allows citizens to enforce environmental laws and regulations since the public as a whole is affected by damage to the environment. This law seems to have been designed for the situation of the Uplands: a piece of land surrounded by 112 acres of a State-owned reservation. Wetlands experts believe that any damage to the floodplain and wetlands surrounding the development has the potential to impact the Winn Brook neighborhoods across Little Pond who already experience flooding due to high ground-water levels. Inadequate storm-water systems can also rush flood-waters downstream to Cambridge and Arlington. Wetlands absorb floodwaters and filter pollutants from stormwater runoff before they can enter the environment. Furthermore, the Department of Conservation and Recreation as well as the Plaintiffs' expert state that the huge size of the proposed development would adversely impact the wildlife value of the entire Alewife Reservation. It will deprive the region's residents of a valuable outdoor classroom to learn about an abundant number of species of birds and animals.
In making their finding, the Appeals court ignored legal precedents set by several Appeals Court decisions and Supreme Judicial Court (SJC) rulings over the past 5 decades. For example, in the Appeals court case cited by the Superior Court Judge in allowing our standing, Healer vs. Department of Environmental Protection ( 2009), the court wrote "We reject the town's contention that the plaintiffs lacked standing to advance the present claim for the reason, if no other, that the [Wetlands Protection] act provides that such claims may be brought by any ten residents of the town or city in which the land at issue is located" following the procedures of the Citizens Environmental Suit Statute.
If left in place, this latest Appeals court decision could be used to deny the standing of 10-person groups claiming damage to the environment throughout the Commonwealth, enabling environmental damage throughout the State. Several environmental groups we have talked to have expressed their concern with this decision.
The second basis for standing had to do with the Plaintiffs' "intervention" as full parties in a DEP adjudicatory hearing. We believe that the Appeals Court misapplied a recent SJC decision in denying Plaintiffs' standing as intervenors.
On Sept. 27, plaintiffs filed a petition for "Further Appellate Review" to the SJC arguing that the Appeals Court panel of three justices erred in their decision on both standing issues. The SJC will hear the case if the court finds it to be substantive and in the interests of justice and the public good.
For more information, please visit BelmontCoalition.org.
Idith Haber is president of the Coalition to Preserve the Belmont Uplands, Inc. Read more: http://www.wickedlocal.com/belmont/news/x914330492/Latest-court-decision-has-statewide-implications#ixzz2gzZHACE2 Follow us: @citizenherald on Twitter | citizenherald on Facebook
Accessed 2013-10-06 - preserved for historical reasons
Latest court decision has statewide implications
By Idith Haber - Belmont Citizen-Herald
Posted Oct 02, 2013 @ 09:16 PM
Belmont, Mass. — On Sept. 9, the Appeals Court rendered a decision holding that the plaintiffs in the Belmont Uplands case lacked standing to appeal the Department of Environmental Protection (DEP) Commissioner’s adverse decision. This decision follows an appeal of a Superior Court decision in which the judge stated that the plaintiffs had two independent grounds to the right to appeal the DEP, but disagreed with the plaintiffs about errors made in the DEP's decision. The plaintiffs are the Coalition, Friends of Alewife Reservation and 12 Belmont residents.
It is important to note that the Appeals Court made no comment on the actual merits of our case. In many other decisions in which the court has denied the standing of plaintiffs, it has also denied the merits of their case at the same time. Since, in our case, the court denied standing but did not reject the case's merits, the real possibility exists that they found merit in all or parts of our case.
The Appeals Court denied the 12 individual plaintiffs’ standing to bring a "Citizens Environmental Suit" under Massachusetts law Chapter 214, Section 7A against the developer. This law provides that "not less than 10 persons domiciled within the commonwealth" may bring an action to prevent "damage to the environment" caused by violation of an environmental law. In addition, the Wetlands Protection Act, which the DEP is charged with enforcing, specifies that a violation of the act can be reviewed by the courts when petitioned by "10 residents of the commonwealth under the provisions of section seven A of chapter two hundred and fourteen."
The Citizens Environmental Suit Statute allows citizens to enforce environmental laws and regulations since the public as a whole is affected by damage to the environment. This law seems to have been designed for the situation of the Uplands: a piece of land surrounded by 112 acres of a State-owned reservation. Wetlands experts believe that any damage to the floodplain and wetlands surrounding the development has the potential to impact the Winn Brook neighborhoods across Little Pond who already experience flooding due to high ground-water levels. Inadequate storm-water systems can also rush flood-waters downstream to Cambridge and Arlington. Wetlands absorb floodwaters and filter pollutants from stormwater runoff before they can enter the environment. Furthermore, the Department of Conservation and Recreation as well as the Plaintiffs' expert state that the huge size of the proposed development would adversely impact the wildlife value of the entire Alewife Reservation. It will deprive the region's residents of a valuable outdoor classroom to learn about an abundant number of species of birds and animals.
In making their finding, the Appeals court ignored legal precedents set by several Appeals Court decisions and Supreme Judicial Court (SJC) rulings over the past 5 decades. For example, in the Appeals court case cited by the Superior Court Judge in allowing our standing, Healer vs. Department of Environmental Protection ( 2009), the court wrote "We reject the town's contention that the plaintiffs lacked standing to advance the present claim for the reason, if no other, that the [Wetlands Protection] act provides that such claims may be brought by any ten residents of the town or city in which the land at issue is located" following the procedures of the Citizens Environmental Suit Statute.
If left in place, this latest Appeals court decision could be used to deny the standing of 10-person groups claiming damage to the environment throughout the Commonwealth, enabling environmental damage throughout the State. Several environmental groups we have talked to have expressed their concern with this decision.
The second basis for standing had to do with the Plaintiffs' "intervention" as full parties in a DEP adjudicatory hearing. We believe that the Appeals Court misapplied a recent SJC decision in denying Plaintiffs' standing as intervenors.
On Sept. 27, plaintiffs filed a petition for "Further Appellate Review" to the SJC arguing that the Appeals Court panel of three justices erred in their decision on both standing issues. The SJC will hear the case if the court finds it to be substantive and in the interests of justice and the public good.
For more information, please visit BelmontCoalition.org.
Idith Haber is president of the Coalition to Preserve the Belmont Uplands, Inc. Read more: http://www.wickedlocal.com/belmont/news/x914330492/Latest-court-decision-has-statewide-implications#ixzz2gzZHACE2 Follow us: @citizenherald on Twitter | citizenherald on Facebook