Posts tagged "Environmental"

Spinazola v. Mass. Environmental Associates, Inc., et al. (Lawyers Weekly No. 12-078-17)

1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 0684CV00949BLS1 ROSEMARY SPINAZOLA, as Executrix of the Estate of Clarence Spinazola and as Co-Trustee of the Clarence Spinazola 1994 Revocable Trust vs. MASS. ENVIRONMENTAL ASSOCIATES, INC. and PATRICK J. HANNON MEMORANDUM OF DECISION AND ORDER ON MOTION TO SUBSTITUTE ASSIGNEE, KING ROOT CAPITAL, LLC, AS PLAINTIFF AND REQUEST FOR EXECUTION This case was filed on March 6, 2006. On March 8, 2007, a Final Judgment by Default Upon Assessment of Damages by the Court entered in favor of the plaintiff, Rosemary Spinazola, as Executrix of the Estate of Clarence Spinazola and as Co-Trustee of the Clarence Spinazola 1994 Revocable Trust (the Judgment)1, in the amount of $ 982,316, with interest from the date of filing. On August 20, 2007, the defendants filed a “Motion to Vacate Judgment by Default for Failure to Produce Discovery and for Failure to Comply with Court Orders.” On September 18, 2007, that motion was denied. Then, nearly ten years later, the motion now before the court was filed. It is styled: “Motion to Substitute Assignee, King Root Capital, LLC, as Plaintiff and Request for Execution” (the Motion). In that motion, King Root Capital, LLC (King Root) alleges that: (1) Spinazola assigned her interest in the Judgment to ABCD Holdings, LLC (ABCD Holdings or, simply, ABCD); (2) ABCD, thereafter, assigned its interest to King Root; (3) after accounting for payments by the defendants and the further accrual of post- 1 It is not clear to the court whether the judgment is in favor of Rosemary Spinazola, individually, or the Estate or a Trust. The court will simply use the term “plaintiff.” 2 judgment interest, as of October 18, 2016 the Judgment balance is $ 2,055,540.59, with interest accruing from that date; and (4) the court should “substitute it as the plaintiff in this case and issue an execution in its name [in that amount].” The defendants appeared by counsel and opposed the motion. The principal grounds for their opposition was that the sole member of ABCD is attorney George A. McLaughlin, III, whose brother is the sole member of King Root. McLaughlin represented defendant Hannon for a number of years, and, in particular, in connection with the negotiation and execution of a Settlement Agreement between the plaintiff and Hannon pursuant to which the Judgment would be satisfied in full by payment to plaintiff of $ 400,000 according to a payment schedule (the Agreement).2 The defendants also alleged that McLaughlin diverted funds available to pay the balance of the $ 400,000 due under the Settlement Agreement to other entities.3 Based on these allegations, the defendants assert that the assignments “are void against public policy, fatally infected […]

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Posted by Massachusetts Legal Resources - June 30, 2017 at 10:33 pm

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Peterborough Oil Company, LLC v. Department of Environmental Protection (Lawyers Weekly No. 10-076-16)

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-11851   PETERBOROUGH OIL COMPANY, LLC  vs.  DEPARTMENT OF ENVIRONMENTAL PROTECTION. Worcester.     October 8, 2015. – June 6, 2016.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.     Hazardous Materials.  Oil and Gas.  Department of Environmental Protection.  Statute, Construction.  Administrative Law, Agency’s interpretation of regulation.  Regulation.  Massachusetts Oil and Hazardous Material Release Prevention Act.       Civil action commenced in the Superior Court Department on August 27, 2013.   The case was heard by William F. Sullivan, J., on motions for summary judgment.   The Supreme Judicial Court granted an application for direct appellate review.     Robert D. Cox, Jr., for the plaintiff. Eric S. Brainsky for Independent Oil Marketers Association of New England. Maryanne Reynolds, Assistant Attorney General, for the defendant. Edward J. DeWitt, for Association to Preserve Cape Cod, amicus curiae, submitted a brief. Donald D. Cooper, for LSP Association, Inc., amicus curiae, submitted a brief.     DUFFLY, J.  After a spill of hazardous materials within a specified radius of a public water supply, Department of Environmental Protection (DEP) regulations require that those deemed to be liable undertake cleanup and monitoring actions to ensure the spill does not pose a danger to that water supply.  See 310 Code Mass. Regs. §§ 40.0801, 40.0810, 40.0993(3)(a) (2014); 40.1030(2)(e) (2015).  An exemption promulgated in 2007, however, exempts “oil” from some of these requirements when other enumerated requirements are met.  See 310 Code Mass. Regs. § 40.0924(2)(b)(3)(a) (2014) (oil exemption).  The DEP’s definition of the term “oil” in this “oil exemption” is at the heart of this lengthy litigation between DEP and Peterborough Oil Company, LLC (Peterborough). Peterborough owns a property, now vacant, in Athol, where it operated a gasoline station for more than ten years.[1]  The property is located within a protection area for public water supply wells.  In 1994, a release of leaded gasoline that originated from a subterranean gasoline storage tank was detected in soil on the site.  Since then, DEP has required Peterborough to undertake supervised cleanup and monitoring activities at the site.  In 2008, shortly after the oil exemption was established, Peterborough submitted a revised remediation plan to DEP, stating that further remediation was not required because the entirety of the leaded gasoline spilled falls within the definition of “oil” for purposes of the exemption.  In 2011, DEP audited the site and […]

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Posted by Massachusetts Legal Resources - June 6, 2016 at 4:59 pm

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Kain, et al. v. Department of Environmental Protection (Lawyers Weekly No. 10-066-16)

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-11961   ISABEL KAIN & others[1]  vs.  DEPARTMENT OF ENVIRONMENTAL PROTECTION.       Suffolk.     January 8, 2016. – May 17, 2016.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.     Department of Environmental Protection.  Environment, Air pollution.  Regulation.  Administrative Law, Regulations.  Declaratory Relief.  Statute, Construction.       Civil action commenced in the Superior Court Department on August 12, 2014.   The case was heard by Robert B. Gordon, J., on motions for judgment on the pleadings.   The Supreme Judicial Court granted an application for direct appellate review.     Jennifer K. Rushlow (Susan J. Kraham, of New York, & Veronica S. Eady with her) for Conservation Law Foundation & another. Jo Ann Shotwell Kaplan, Assistant Attorney General, for the defendant. Phelps Turner & C. Dylan Sanders, for Isabel Kain & others, were present but did not argue. The following submitted briefs for amici curiae: Stephanie R. Parker for Clean Water Action & others. Edward J. DeWitt for Association to Preserve Cape Cod. Arthur P. Kreiger & Jessica A. Wall for William R. Moomaw & others. Robert J. Muldoon, Jr., & Thomas Paul Gorman for David A. Wirth.     CORDY, J.  In this case, we are asked to decide whether the Department of Environmental Protection (department) has fulfilled its statutory mandate under G. L. c. 21N, § 3 (d) (§ 3 [d]), which provides that the department “shall promulgate regulations establishing a desired level of declining annual aggregate emission limits for sources or categories of sources that emit greenhouse gas emissions.”  By the terms of the enabling legislation, the Global Warming Solutions Act, St. 2008, c. 298 (act), these regulations were to be issued by January 1, 2012, to take effect on January 1, 2013, and to expire on December 31, 2020.  See St. 2008, c. 298, § 16.  The department failed to take action by the statutory deadline, and in November, 2012, a group of residents submitted a rulemaking petition to the department seeking the issuance of regulations pursuant to § 3 (d) to limit greenhouse gas emissions[2] in the Commonwealth. The department held a public hearing on June 13, 2013, to consider the petition.  Shortly thereafter, it issued a written statement addressing the petitioners’ concerns and concluding that it had complied with the requirements of the act, including those set forth in § 3 (d).  The statement also referenced […]

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Posted by Massachusetts Legal Resources - May 17, 2016 at 5:33 pm

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Navy Yard Four Associates, LLC v. Department of Environmental Protection, et al. (Lawyers Weekly No. 11-130-15)

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   14-P-607                                        Appeals Court   NAVY YARD FOUR ASSOCIATES, LLC  vs.  DEPARTMENT OF ENVIRONMENTAL PROTECTION & another.[1] No. 14-P-607. Suffolk.     April 2, 2015. – September 4, 2015.   Present:  Kafker, C.J., Kantrowitz, & Hanlon, JJ.   Harbors.  Real Property, Harbors, Restrictions, Littoral property, License.  Trust, Public trust.  License.  Department of Environmental Protection.  Administrative Law, Agency’s authority, Regulations, Agency’s interpretation of statute, Agency’s interpretation of regulation.  Regulation.  Statute, Construction.  Words, “Tidelands.”     Civil action commenced in the Superior Court Department on December 20, 2011.   The case was heard by Peter M. Lauriat, J., on motions for judgment on the pleadings and for partial summary judgment.     Donald R. Pinto, Jr., for the plaintiff. Seth Schofield, Assistant Attorney General, for Department of Environmental Protection. John A. Pike, for Conservation Law Foundation, amicus curiae, submitted a brief.   KAFKER, C.J.  This appeal arises from a dispute over public accommodation requirements imposed within a waterways license issued by the Department of Environmental Protection (DEP) pursuant to G. L. c. 91 for property currently owned by the plaintiff, Navy Yard Four Associates, LLC (NYF).  The property is an approximately 2.6-acre parcel of land in Charlestown abutting Boston Harbor.  It is the site of a 224-unit apartment building development known as Harborview.  DEP concluded in 2004 that the project was a nonwater-dependent use sited on filled “Commonwealth [t]idelands” and therefore special conditions were included as part of its waterways license to ensure that the project served a “proper public purpose.”  One of these special conditions was that seventy-five percent of the ground floor of the building be reserved for facilities of public accommodation.  In 2009, NYF sought to amend its license, particularly the public accommodation requirements, contending that (1) G. L. c. 91 limits “Commonwealth tidelands” to submerged lands and excludes the tidal flats on which this project is sited, and (2) “Commonwealth tidelands” do not include property owned by the Boston Redevelopment Authority, which owned the property at the time of permitting, or other such political subdivisions or quasi public agencies of the Commonwealth.  DEP declined to grant the amendment, and NYF appealed DEP’s decision to the Superior Court in accordance with G. L. c. 30A, § 14, naming both DEP and the Commonwealth as defendants.  The Superior Court affirmed DEP’s denial of NYF’s requested c. 91 license amendment and rejected NYF’s request for a declaratory […]

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Posted by Massachusetts Legal Resources - September 4, 2015 at 2:56 pm

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Stone-Ashe v. Department of Environmental Protection, et al. (Lawyers Weekly No. 11-082-14)

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   13-P-489                                        Appeals Court WENDY STONE-ASHE, trustee,[1]  vs.  DEPARTMENT OF ENVIRONMENTAL PROTECTION & another.[2] No. 13-P-489. Suffolk.     January 14, 2014. – July 16, 2014.   Present:  Trainor, Graham, & Agnes, JJ. Trust, Public trust.  Department of Environmental Protection.  Administrative Law, Agency’s authority, Regulations.  Regulation.  Real Property, Littoral property, Harbors, Wharf, Restrictions.  Harbors.  Evidence, Expert opinion.  Witness, Expert.       Civil action commenced in the Superior Court Department on October 29, 2010.   The case was heard by Bonnie H. MacLeod, J., on a motion for judgment on the pleadings.     Richard A. Nylen, Jr., for the plaintiff. Jo Ann Shotwell Kaplan, Assistant Attorney General, for the defendants.      GRAHAM, J.  The plaintiff, Wendy Stone-Ashe, trustee of the Stone-Ashe Realty Trust,[3] appeals from a Superior Court judgment that affirmed a final decision of the Commissioner (commissioner) of the Department of Environmental Protection (department), which concluded that a seawall on the plaintiff’s property lies seaward of the historic high water mark and, therefore, is under the jurisdiction of the department and subject to public rights pursuant to G. L. c. 91.  Substantially for the reasons stated in the decisions of the commissioner and the Superior Court judge, we affirm. Background.  1.  Statutory and regulatory framework.  “Under the public trust doctrine, the Commonwealth holds tidelands in trust for the use of the public for, traditionally, fishing, fowling, and navigation.”  Moot v. Department of Envtl. Protection, 448 Mass. 340, 342 (2007), S.C., 456 Mass. 309 (2010).  See generally Boston Waterfront Dev. Corp. v. Commonwealth, 378 Mass. 629, 631-632 (1979) (detailing history of public trust doctrine).  In enacting G. L. c. 91, the Legislature delegated at least some of its authority to preserve and regulate the Commonwealth’s tidelands to the department.  Moot v. Department of Envtl. Protection, supra at 347.  General Laws c. 91, § 1, inserted by St. 1983, c. 589, § 21, defines “[t]idelands” as “present and former submerged lands and tidal flats lying below the mean high water mark.”  “Private tidelands” are defined as “tidelands held by a private party subject to an easement of the public for the purposes of navigation and free fishing and fowling and of passing freely over and through the water.”  Ibid. The department’s jurisdiction extends only to the tidelands seaward of the historic high water mark.  “[B]ecause actual high and low water marks can change over time, notably pursuant to licenses to fill […]

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Posted by Massachusetts Legal Resources - July 16, 2014 at 6:00 pm

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Wassenar v. Department of Environmental Protection (Lawyers Weekly No. 11-022-14)

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         12‑P‑1671                                       Appeals Court   HAROLD B. WASSENAR  vs.  DEPARTMENT OF ENVIRONMENTAL PROTECTION. No. 12‑P‑1671. Worcester.     September 17, 2013.  ‑  March 5, 2014. Present:  Hanlon, Brown, & Sullivan, JJ.   Department of Environmental Protection.  Penalty.  Escrow.  Practice, Civil, Dismissal of appeal, Waiver.  Waiver.       Civil action commenced in the Superior Court Department on January 20, 2011.   A motion to dismiss was heard by Richard T. Tucker, J.     Henry J. Lane for the plaintiff. Maryanne Reynolds, Assistant Attorney General, for the defendant.       HANLON, J.  The Department of Environmental Protection (DEP) issued a final decision against Harold B. Wassenar, requiring him to pay a civil administrative penalty of $ 80,586.  Wassenar sought judicial review in the Superior Court under G. L. c. 30A, § 14.  As a condition precedent to that court’s jurisdiction to review the administrative proceeding, Wassenar was required to post the full amount of the assessed penalty in an escrow account, unless he was able to demonstrate either an inability to pay the assessment or the presence of a substantial question of law.  See G. L. c. 21A, § 16, inserted by St. 1985, c. 95, § 1.  After a hearing, a judge of the Superior Court determined that Wassenar had satisfied neither condition.  When Wassenar did not place the assessment amount in an escrow account, a second judge dismissed his complaint.  Wassenar now appeals, arguing that the motion judge erred both in the determination of his ability to pay, and in the determination that there was no substantial issue of law.  We affirm. Background.  On November 6, 2007, the DEP assessed Wassenar an $ 80,586 civil administrative penalty for violations involving hazardous and solid waste storage on property he owned at 290 Millville Road in Uxbridge.  Wassenar, contesting the penalty, submitted to the DEP an affidavit, arguing that the stored items were “consistent with the use of [his] premises as a home” and, in any event, were being stored there only temporarily.  John Kronopolus, a DEP engineer, submitted a rebuttal affidavit challenging most of the assertions made in Wassenar’s affidavit.  After an adjudicatory appeal hearing, the DEP issued a final penalty order; the order was affirmed after reconsideration. Wassenar then filed a complaint in the Superior Court pursuant to G. L. c. 30A, § 14, seeking judicial review of the DEP’s final order, claiming that the order was arbitrary […]

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Posted by Massachusetts Legal Resources - March 5, 2014 at 10:11 pm

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Beverly Port Marina, Inc. v. Commissioner of the Department of Environmental Protection, et al. (Lawyers Weekly No. 11-145-13)

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       12‑P‑2010                                       Appeals Court   BEVERLY PORT MARINA, INC.  vs.  COMMISSIONER OF THE DEPARTMENT OF ENVIRONMENTAL PROTECTION & another.[1] No. 12‑P‑2010. Essex.     September 12, 2013.  ‑  December 11, 2013. Present:  Green, Grainger, & Fecteau, JJ.   Department of Environmental Protection.  Administrative Law, Agency’s interpretation of regulation, Regulations.  Regulation.  Real Property, Littoral property, License.  License.       Civil actions commenced in the Superior Court Department on July 22 and November 7, 2011.   After consolidation, the case was heard by David A. Lowy, J., on motions for judgment on the pleadings.     Adam J. Brodsky for the plaintiff. Louis M. Dundin, Assistant Attorney General, for Department of Environmental Protection. Richard A. Nylen, Jr., for city of Beverly.       GREEN, J.  Under the regulations governing issuance of licenses under G. L. c. 91 for projects on filled tidelands, a license may not issue for a project proposed in a “designated port area” (DPA) if a proposal for a “competing project” submitted during the public comment period on the license application would promote water-dependent industrial uses of the project site to a greater extent than the project proposed in the license application.  See 310 Code Mass. Regs. § 9.36(5)(a) (1994).  During review by the Department of Environmental Protection (DEP) of an application by the city of Beverly (city) for licenses authorizing, inter alia, construction and operation of a restaurant on a waterfront site, the plaintiff, Beverly Port Marina, Inc. (BPM), submitted a proposal to, inter alia, build and operate a boatyard on the site instead.  A DEP hearing officer (presiding officer) concluded that BPM’s submission failed to demonstrate that its proposal was feasible, and recommended issuance of the licenses, with conditions, for the city’s proposed project.  The DEP commissioner adopted the recommended decision, and BPM appealed the decision to the Superior Court, where a judge affirmed the decision on cross motions for judgment on the pleadings.  We conclude that BPM’s competing proposal adequately satisfied the criteria established by the applicable regulations, and we vacate the judgment.   Background.  The site at the center of the controversy among the parties is a parcel owned by the city known as “Glover’s Wharf,” located along the Beverly waterfront.  The site is at the westernmost end of a DPA established in 1978 under the Massachusetts Coastal Zone Management Plan.  See 301 Code Mass. Regs. […]

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Posted by Massachusetts Legal Resources - December 11, 2013 at 4:44 pm

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Franklin Office Park Realty Corp. v. Commissioner of the Department of Environmental Protection (Lawyers Weekly No. 10-172-13)

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‑11334   FRANKLIN OFFICE PARK REALTY CORP.  vs.  COMMISSIONER OF THE DEPARTMENT OF ENVIRONMENTAL PROTECTION.     Worcester.     May 9, 2013.  ‑  September 16, 2013. Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.       Department of Environmental Protection.  Administrative Law, Agency’s interpretation of statute, Regulations, Judicial review.  Practice, Civil, Review of administrative action.  Environment, Air pollution.  Asbestos.  Statute, Construction.  Regulation.  Words, “Wilful.”       Civil action commenced in the Superior Court Department on March 22, 2011.   The case was heard by John S. McCann, J., on a motion for judgment on the pleadings.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     Louis M. Dundin, Assistant Attorney General, for the defendant. Paul E. White for the plaintiff.       DUFFLY, J.  The plaintiff, Franklin Office Park Realty Corp. (Franklin), challenges the assessment of a penalty in the amount of $ 18,225, imposed by the Department of Environmental Protection (DEP) for improper handling and disposal of roof shingles that contained asbestos.  Franklin argues that, pursuant to G. L. c. 21A, § 16 (administrative penalties act), it was entitled to a notice of noncompliance and the opportunity to cure any violations before a penalty was imposed.  The commissioner of the DEP (commissioner) accepted the recommendation of a hearing officer that he affirm the penalty on the ground that Franklin’s failure to comply fell within one of six exceptions to the notice requirement because it was “willful and not the result of error” (wilfulness exception), see G. L. c. 21A, § 16, which he interpreted as requiring only a showing of “the intent to do an act that violates the law if done.”  Franklin sought judicial review pursuant to G. L. c. 30A, § 14; a judge of the Superior Court determined some of the facts found by the hearing officer to be unsupported by substantial evidence, and that the DEP’s interpretation of G. L. c. 21A, § 16, was unreasonable and thus not entitled to deference.  DEP appealed, and we transferred the case to this court on our own motion. We conclude that the language “willful and not the result of error” in G. L. c. 21A, § 16, when considered in the context of the statutory scheme and the Legislature’s intent, clearly requires a showing that the party who has not complied with the law knew or should […]

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Posted by Massachusetts Legal Resources - September 17, 2013 at 1:50 pm

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Mostyn v. Department of Environmental Protection, et al. (Lawyers Weekly No. 11-081-13)

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       12‑P‑1284                                       Appeals Court   JOHN MOSTYN, trustee,[1]  vs. DEPARTMENT OF ENVIRONMENTAL PROTECTION & others.[2]     No. 12‑P‑1284. Suffolk.     April 4, 2013.  ‑  June 24, 2013. Present:  Meade, Milkey, & Hanlon, JJ.   Real Property, Beach, Conservation restriction.  Beach.  Wetlands Protection Act.  Department of Environmental Protection.  Municipal Corporations, Conservation commission.  Administrative Law, Standing, Regulations, Agency’s interpretation of regulation.  Practice, Civil, Standing.       Civil action commenced in the Superior Court Department on July 20, 2010.   The case was heard by Thomas E. Connolly, J., on motions for judgment on the pleadings.     David L. Klebanoff for the plaintiff. Suleyken D. Walker, Assistant Attorney General, for Department of Environmental Protection. Justin Perrotta for Terry Milligan.     MILKEY, J.  The Sea Pines Condominium Association (Sea Pines) owns a lengthy stretch of beach in Brewster.  On a long-standing basis, members of the association have stored kayaks on a coastal dune there.  Upland of the area where the kayaks were stored is property owned by the Lot 106-2 Dune Road Realty Trust, whose sole beneficiary is Joseph E. Corcoran.  Corcoran objects to the kayaks being stored in front of his property and the attendant foot traffic that it engenders.  At his instance, the conservation commission of Brewster (commission) determined that the storage of the kayaks on the dune was an activity subject to regulation pursuant to the Wetlands Protection Act, G. L. c. 131, § 40 (the act), and therefore that it could continue only if Sea Pines obtained an order of conditions allowing such use.  After several layers of administrative review and an adjudicatory hearing, the Department of Environmental Protection (DEP) issued a final decision temporarily allowing the kayak storage to resume on certain specified conditions.  On Corcoran’s appeal taken pursuant to G. L. c. 30A, § 14, a Superior Court judge affirmed DEP’s decision.  We affirm the judgment. Background.  According to evidence presented at the adjudicatory hearing, Sea Pines has stored kayaks or other small boats on the dune since 1981.  Although Corcoran contested that specific date, it appears undisputed that the practice has been of very long duration. As DEP’s presiding officer found, and Sea Pines does not dispute, the long-standing storage of the boats, and attendant foot traffic, has had an adverse impact on the dune.  Specifically, the portion of the dune at issue has […]

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Posted by Massachusetts Legal Resources - June 25, 2013 at 4:50 am

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Mahajan, et al. v. Department of Environmental Protection, et al. (Lawyers Weekly No. 10-046-13)

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‑11134   SANJOY MAHAJAN & others[1]  vs.  DEPARTMENT OF ENVIRONMENTAL PROTECTION & another.[2]     Suffolk.     November 5, 2012.  ‑  March 15, 2013. Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.     Department of Environmental Protection.  Redevelopment of Land.  Urban Renewal.  Harbors.  Parks and Parkways.  Constitutional Law, Taking of property.  Due Process of Law, Taking of property, Commonwealth’s interest in tidelands.       Civil action commenced in the Superior Court Department on February 26, 2010.   The case was heard by Elizabeth M. Fahey, J., on motions for judgment on the pleadings.   The Supreme Judicial Court granted an application for direct appellate review.     Denise A. Chicoine for Boston Redevelopment Authority. Annapurna Balakrishna, Assistant Attorney General, for Department of Environmental Protection. Gregor I. McGregor (Michael J. O’Neil & Luke H. Legere with him) for the plaintiffs. The following submitted briefs for amici curiae: Heather Maguire Hoffman for Shirley Kressel.   Thomas B. Bracken for The Sierra Club. Peter Shelley & John A. Pike for Conservation Law Foundation, Inc., & others.     CORDY, J.  This action arises from the Department of Environmental Protection’s (department’s) issuance of a waterways license under G. L. c. 91 (chapter 91 license) to the Boston Redevelopment Authority (BRA) to redevelop a section of land owned by the BRA on the seaward end of Long Wharf (project site).  The plaintiffs, ten residents of Boston’s North End neighborhood, appealed the issuance of the chapter 91 license to the department’s office of appeals and dispute resolution, and ultimately to a judge in the Superior Court, claiming the department acted unconstitutionally and beyond its statutory authority when it issued the chapter 91 license without obtaining a two-thirds vote of the Legislature as required by art. 97 of the Amendments to the Massachusetts Constitution.[3]  On cross motions for judgment on the pleadings, the motion judge ordered declaratory relief and issued a writ of mandamus ordering the department to enforce art. 97.  We granted the BRA’s application for direct appellate review.  We are presented with two principal questions:  Whether the project site, which the BRA took by eminent domain for urban renewal purposes, is subject to art. 97; and if art. 97 does apply, whether the department may issue the chapter 91 license to the BRA without triggering the requirement of a two-thirds vote of the Legislature.  […]

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Posted by Massachusetts Legal Resources - March 15, 2013 at 4:27 pm

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