ANDREW CELENTANO, HEIDI KELF, MICHAEL RYAN, SANDRA PASCAL, CAROL McKINLEY, DAVID HOFF, MICHAEL FREDERICK, KAREN JOHNSON, HUBERT HOLLEY, THOMAS LINCOLN and THE FRIENDS OF THE MIDDLESEX FELLS RESERVATION, INC., as “persons domiciled with the Commonwealth,” and the CITY OF MELROSE v. FELLSWAY DEVELOPMENT, LLC and LANGWOOD COMMONS, LLC

Introduction

The twelve named plaintiffs in this case — ten individuals, a non-profit corporation, and a municipality — have brought this action under G.L. c. 214, § 7A, seeking equitable or declaratory relief against the defendants Fellsway Development, LLC and Langwood Commons, LLC (the owners of the former Boston Regional Medical Center in Stoneham, which they wish to redevelop for commercial and residential uses) based on their allegation that that development will cause “damage to the environment” within the meaning of the statute. The defendants now move for summary judgment, asserting that the plaintiffs have failed to satisfy two of the statutory prerequisites: first, that the “damage” “is occurring or is about to occur”; and second, “that the damage caused or about to be caused . . . constitutes a violation of a statute, ordinance, by-law or regulation the major purpose of which is to prevent or minimize damage to the environment.” G.L. c. 214, § 7A. The plaintiffs have cross-moved for summary judgment, contending that these requirements are met.

As more fully discussed below, I agree with the defendants that this action is premature and, for that reason, must be dismissed. On the undisputed facts, as a matter of law, no damage to the environment, “actual or probable,” presently is “occurring or about to occur” within the meaning of G.L. c. 214, § 7A. Id. The defendants’ motion for summary judgment is therefore ALLOWED and the plaintiffs’ motion for summary judgment is DENIED. [Note 1] The plaintiffs’ claims are thus dismissed in their entirety. I need not, and do not, reach the issue of whether the alleged activities would constitute a violation of G.L. c. 214, § 7A if they ever occur.

Discussion

Summary judgment is appropriately entered when “there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law.” Mass. R. Civ. P. 56(c); Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty Nat’l Bank v. Dawes, 369 Mass. 550 , 553 (1976). Material facts are those “that might affect the outcome of the suit under the governing law . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The defendants have moved for summary judgment to dismiss the plaintiffs’ complaint. The analysis thus turns on what G.L. c. 214, § 7A requires and whether the undisputed facts show that the plaintiffs have failed to establish one or more of those requirements.

G.L. c. 214, § 7A provides, in relevant part,

The superior court for the county in which damage to the environment is occurring or is about to occur may, upon a civil action in which equitable or declaratory relief is sought in which not less than ten persons domiciled within the commonwealth are joined as plaintiffs, or upon such an action by any political subdivision of the commonwealth, determine whether such damage is occurring or is about to occur and may, before the final determination of the action, restrain the person causing or about to cause such damage; provided, however, that the damage caused or about to be caused by such person constitutes a violation of a statute, ordinance, by-law or regulation the major purpose of which is to prevent or minimize damage to the environment.

(emphasis added). “Damage to the environment” is defined as follows:

any destruction, damage, or impairment, actual or probable, to any of the natural resources of the commonwealth, whether caused by the defendant alone or by the defendant and others acting jointly or severally. Damage to the environment shall include, but not be limited to, air pollution, water pollution, improper sewage disposal, pesticide pollution, excessive noise, improper operation of dumping grounds, impairment and eutrophication of rivers, streams, flood plains, lakes, ponds or other water resources, destruction of seashores, dunes, wetlands, open spaces, natural areas, parks or historic districts or sites. Damage to the environment shall not include any insignificant destruction, damage or impairment to such natural resources.

Id. (emphasis added). This court has jurisdiction to hear such claims in its permit session, inter alia, when, as plaintiffs allege is at issue here, a challenge is made to “the interpretation or application of municipal, regional or state rules, regulations, statutes, laws, bylaws, [or] ordinances concerning any permit or approval” and “the underlying project or development involves either 25 or more dwelling units or the construction or alteration of 25,000 square feet of gross floor area or both.” G.L. c. 185, § 3A.

The plaintiffs concede, as they must, that no damage to the environment presently is occurring from the defendants’ proposed project since construction has not yet begun. They contend, however, that such damage is about to occur in the sense that it is probable if the project is built as currently designed. Therefore, they argue, G.L. c. 214, § 7A entitles them to a declaratory judgment to that effect. I disagree.

A series of cases have held that damage is not “about to occur” if the project is still in preliminary phases. See, e.g., Walpole v. Sec’y of the Executive Office of Envtl. Affairs, 405 Mass. 67 , 71 (1989) (concluding that environmental damage was not “about to occur” where proposed wastewater treatment plant was only at the stage where environmental impact studies were being performed); Warren v. Hazardous Waste Facility Site Safety Council, 392 Mass. 107 , 118 (1984) (concluding that environmental damage was not “about to occur” where a proposed hazardous waste facility was still at the “feasibility determination” stage, “an early step in the siting process”); Perry v. Robbins, 2001 WL 1089484 at *6 (Mass. Super. Sept. 6, 2001) (concluding that environmental damage was not “about to occur,” “even if the plaintiffs’ submissions establish probable environmental damage as the result of the expansion of the golf course,” when zoning relief and “numerous environmental approvals” were still required before the project could commence). The plaintiffs attempt to (1) distinguish these cases from situations where no further permits requiring substantive review are necessary, (2) argue that in such situations damage is “about to occur” because no further change to the project is likely, and (3) characterize the facts of this case as such a situation. Again, I disagree. Nothing in Walpole, Warren or Perry suggests such a limited reading, nor can the statute fairly be read in that limited fashion. “As always when the meaning of a statute is at issue, the initial inquiry focuses on the actual language of that statute. Where the language of a statute is clear and unambiguous, it is conclusive as to legislative intent, and the courts enforce the statute according to its [plain] wording.” Martha’s Vineyard Land Bank Comm’n v. Bd. of Assessors of West Tisbury, 62 Mass. App. Ct. 25 , 27-28 (2004) (internal quotations and citations omitted, alternation in original). The language of G.L. c. 214, §7A is clear (“damage to the environment is occurring or is about to occur”). With the exception of technical terms, not present here, “[w]ords and phrases [in a statute] shall be construed according to the common and approved usage of the language. . . .” G.L. c. 4, § 6. The dictionaries define “about” as “approximately,” “nearly,” “almost” or “on the point of.” American Heritage College Dictionary 4 (4th ed. 2002); Concise Oxford Dictionary 4 (10th ed. 1999). This project is nowhere near that stage and for marketing, financial or other reasons, it may undergo significant changes. As the statutory language acknowledges, the fact and extent of “damage” will not be known until the project is in its final form and that final form will not be known until building permits are issued or, perhaps, until construction actually begins. In short, no cause of action under G.L. c. 214, § 7A presently exists.

The fact that G.L. c. 214, § 7A contemplates declaratory as well as injunctive relief does not change this analysis. The words “is occurring or is about to occur” apply to both and even declaratory relief requires an actual case in controversy and not a hypothetical one, no matter how likely the hypothetical. [Note 2] G.L. c. 231A, § 1; Mass. Assoc. of Ind. Ins. Agents and Brokers, Inc. v. Comm'r of Ins., 373 Mass. 290 , 292 (1977).

Conclusion

For the foregoing reasons, the plaintiffs’ motion for summary judgment is DENIED and the defendants’ motion for summary judgment dismissing the plaintiffs’ complaint is ALLOWED. On the undisputed facts, as a matter of law, no damage to the environment, “actual or probable,” presently is occurring and because building permits have not issued and construction has not begun, no damage to the environment, “actual or probable,” “is about to occur” within the meaning of G.L. c. 214, § 7A. Judgment shall issue accordingly.

SO ORDERED.

By the court (Long, J.)

Attest:

Deborah J. Patterson, Recorder

Dated: 4 February 2009