Posts tagged "Facilities"

Anne Gamble Ten Taxpayer Group, et al. v. Health Facilities Appeals Board, et al. (Lawyers Weekly No. 09-031-17)

1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT SUCV2015-3545-BLS2 ANNE GAMBLE TEN TAXPAYER GROUP, consisting of GUSTAVE H. MURBY, ANNE C. GAMBLE, WALTER J. GAMBLE, STEPHEN GELLIS, M.D., LORING CONANT M.D., JR., CONANT LOUISE, BRIAN GREENBERG, PEGGY GREENBERG, KAREN D’AMATO, CHRISTINE BARENSFELD, JOHN W. HAGERMAN, ROBERT GAMBLE, SHIRLEY C. DUFF, JAMES K. DUFF, JAMES M. SMITH, and ELLEN K. ANDERSSON, Plaintiffs vs. HEALTH FACILITIES APPEALS BOARD, MONICA BHAREL, M.D., in her capacity as COMMISSIONER OF MASSACHUSETTS DEPARTMENT OF PUBLIC HEALTH, MARYLOU SUDDERS, in her capacity as SECRETARY OF MASSACHUSETTS EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICES, and CHILDREN’S HOSPITAL CORPORATION d/b/a CHILDREN’S HOSPITAL, Defendants MEMORANDUM OF DECISION AND ORDER ON CROSS MOTIONS FOR JUDGMENT ON THE PLEADINGS AND ON PLAINTIFFS’ MOTION TO AMEND COMPLAINT This is one of several lawsuits filed by a group of plaintiffs unhappy with a decision by the defendant Boston Children’s Hospital (BCH) to eliminate the Prouty Garden as part of a modernization and expansion project. In the instant case, plaintiffs challenge the October 27, 2016 determination by the Commissioner of the Department of Public Health and the Public Health Council (collectively, the Department) to issue a Determination of Need in connection with that project. The Department’s decision is subject to judicial review pursuant to G.L.c. 30A §14 and G.L.c. 111 §25E. With the Administrative Record having been filed, this case is before this Court on Cross Motions for Judgment on the Pleadings, as required by Superior Court Standing Order 1-96. Plaintiffs also seek leave to amend their Complaint. This Court concludes 2 that the plaintiffs’ motions must be DENIED and the defendants’ Cross Motion must be ALLOWED, for reasons set forth herein. BACKGROUND Section 25C of Chapter 111 of the Massachusetts General Laws states that a health care institution contemplating a construction project that requires a “substantial capital expenditure” must first obtain a determination of need or “DoN” from the Department of Public Health (DPH). The purpose of the statute is to “control unnecessary expansion by health care institutions of their patient care facilities,” Howe v. Health Facilities Appeals Bd., 20 Mass.App.Ct. 531, 532 (1985), and to encourage the appropriate allocation of resources for health care purposes. Shoolman v. Health Facilities Appeals Bd., 404 Mass. 33, 36 (1989). In order to obtain a DoN, the health care institution must file an Application, which is reviewed for completeness and then forwarded for to the Public Health Council (PHC) and the Commissioner of DPH for their consideration. 105 C.M.R. §510-100.530.1 The Application is also subject to comments and a public hearing. G.L.c. 111 §25C, 105 C.M.R. §§100.400-100.410. The DoN Program Director prepares a staff report (the Staff Summary). 105 C.M.R. §§100.420-100.421. Upon consideration of the Application, the […]

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Posted by Massachusetts Legal Resources - November 3, 2017 at 2:37 pm

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City of Brockton v. Energy Facilities Siting Board (No. 1) (and two consolidated cases) (Lawyers Weekly No. 10-131-14)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-11406 CITY OF BROCKTON  vs.  ENERGY FACILITIES SITING BOARD (No. 1) (and two consolidated cases[1]). Suffolk.     March 4, 2014. – July 31, 2014.   Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.[2]     Energy Facilities Siting Board.  Public Utilities, Energy company, Electric company.  Electric Company.  Massachusetts Environmental Policy Act.  Administrative Law, Decision, Judicial review, Substantial evidence.  Environment, Air pollution, Environmental impact report.  Municipal Corporations, Electric plant, Water supply.       Civil actions commenced in the Supreme Judicial Court for the county of Suffolk on August 24, August 28, and September 2, 2009.   After consolidation, the case was reported by Spina, J.      Lisa C. Goodheart (Phelps T. Turner, Joshua D. Nadreau, & Staci Rubin with her) for Frank J. Babbin & others. John L. Holgerson for town of West Bridgwater. Gregor I. McGregor (Nathaniel Stevens with him) for city of Brockton. Sookyoung Shin, Assistant Attorney General, for Energy Facilities Siting Board. David S. Rosenzweig (Erika J. Hafner & Michael J. Koehler with him) for Brockton Power Company LLC. The following submitted briefs for amici curiae: Veronica Eady for Conservation Law Foundation. Rahsaan D. Hall, Matthew Cregor, Sasha N. Kopf, Tyler D. Crosby, & Priya A. Lane for Lawyers’ Committee for Civil Rights and Economic Justice. Wendy B. Jacobs & Aladdine D. Joroff for Hands Across the River Coalition.     BOTSFORD, J.  Brockton Power Company LLC (Brockton Power, or company) filed a petition pursuant to G. L. c. 164, § 69J¼ (§ 69J¼), with the Energy Facilities Siting Board (board) to construct and operate a 350-megawatt combined-cycle energy generating facility (facility) powered by natural gas and ultra-low sulfur distillate (ULSD) on a 13.2-acre lot in the city of Brockton (city).  After extensive hearings, the board approved Brockton Power’s petition, with conditions.  The city, the town of West Bridgewater (town), and a group of residents of the city and the town (residents), all interveners in the proceedings before the board (collectively, interveners), filed appeals in the county court pursuant to G. L. c. 164, § 69P, and G. L. c. 25, § 5.[3]  A single justice reserved and reported the case to the full court.[4]      On appeal the interveners argue[5] that the board (1) failed to adopt and apply the 2002 environmental justice policy that is a binding environmental protection policy of the Commonwealth; (2) improperly relied on the National Ambient Air Quality Standards for […]

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Posted by Massachusetts Legal Resources - July 31, 2014 at 7:20 pm

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Brockton Power Company LLC v. Energy Facilities Siting Board (Lawyers Weekly No. 10-132-14)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-11405 SJC-11407   BROCKTON POWER COMPANY LLC  vs.  ENERGY FACILITIES SITING BOARD & others.[1] CITY OF BROCKTON  vs.  ENERGY FACILITIES SITING BOARD & another[2] (No. 2). Suffolk.     March 4, 2014. – July 31, 2014.   Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.[3]     Energy Facilities Siting Board.  Public Utilities, Electric company, Energy company.  Municipal Corporations, Electric plant, Water supply.  Environment, Air pollution.  Electric Company.  Administrative Law, Decision, Judicial review, Substantial evidence.       Civil action commenced in the Supreme Judicial Court for the county of Suffolk on October 28, 2011.   The case was reported by Spina, J.   Civil action commenced in the Supreme Judicial Court for the county of Suffolk on October 26, 2011.   The case was reported by Spina, J.     Gregor I. McGregor (Nathaniel Stevens with him) for city of Brockton. David S. Rosenzweig (Erika J. Hafner & Michael J. Koehler with him) for Brockton Power Company LLC. Sookyoung Shin, Assistant Attorney General, for Energy Facilities Siting Board. Lisa C. Goodheart (Phelps T. Turner, Joshua D. Nadreau, & Staci Rubin with her) for Frank J. Babbin & others. Wendy B. Jacobs & Aladdine D. Joroff, for Massachusetts Rivers Alliance & others, amici curiae, submitted a brief.     BOTSFORD, J.  On August 7, 2009, the Energy Facilities Siting Board (board), acting pursuant to G. L. c. 164, § 69J¼ (§ 69J¼), approved the petition of Brockton Power Company LLC (Brockton Power or company), to build and operate a 350-megawatt combined-cycle energy generating facility (facility or project) powered by natural gas and ultra-low sulfur distillate (ULSD) in the city of Brockton (city).  As approved by the board, the facility would use wastewater from the city’s advanced wastewater reclamation facility (AWRF) for its cooling tower.  In a consolidated appeal by three of the interveners, we affirmed the board’s decision.  See Brockton v. Energy Facilities Siting Bd. (No. 1), ante     (2014) (Brockton [No. 1]), decided today. On April 9, 2010, while the consolidated appeal was pending, Brockton Power submitted a project change filing (PCF) to the board, seeking approval of three changes to its project.  In the PCF, Brockton Power sought to:  (1) change the source of the facility’s cooling tower water from the AWRF to the Brockton municipal water supply (BMWS); (2) eliminate the use of ULSD as an alternative fuel and rely solely on natural gas […]

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Posted by Massachusetts Legal Resources - July 31, 2014 at 3:45 pm

Categories: News   Tags: , , , , , , , , ,