Summary of Legal Proceedings

2007 – The Belmont Conservation Commission finds adverse impact flooding in an already flood-prone area and the failure of stormwater management systems to meet 3 State standards.  

2008 –  The developer appeals to the Department of Environmental Protection (DEP).  The Coalition joins them as interveners.  After changing some of  the plans, DEP decides for the developer, but an adjudicatory review is requested.

2010 - Decision from the adjudicatory DEP review issued in favor of developer. The developer's lawyers and the department file a motion instructing the judge on how to edit the errors in her decision.

2011 - Hearing held in Middlesex Superior Court appealing the DEP's decision where the Plaintiffs cited unlawful procedures and errors of law.  Superior Court denies Plaintiff's claims but remands a claim of the Belmont Conservation Commission.

2012 - Coalition Appeals to the MA Appeals Court.
                 DEP returns a new decision on the Conservation Commission's remanded issue.      
                 Coalition and Commission file motions in Superior Court to object to the new decision.                   Conservation Commission files motion to introduce new evidence not known at the time of the DEP proceedings.


What could happen next?

1.  If a building permit is issued before the Superior Court decision, then the Coalition is prepared to file an injunction to prevent any irreversible harm to the forest.

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The Coalition was involved in all these proceedings as “interveners.” They brought forth additional charges that the development violated the State's Wetlands Protection Act.

The Coalition and the Belmont Conservation Commission have appealed the DEP's decision and await a Spring 2011 court date.

The issues for the appeal to Superior Court filed by each organization are as follows:

A) The Coalition's Case involves the fact that the development encroaches into the 10-year and 100-year floodplain. The State Wetlands Protection Act sets certain standards for wildlife habitat replication of encroached areas that were not met by the Developer's plans:
  1. The developer did not consider and present compensatory plans for the project's encroachment into the 100 year flood-plain.
  2. The DEP approved an inaccurate wildlife habitat impact area plan for the lower floodplain.
  3. Failure to meet performance standards by replicating an area equal to that affected.
  4. Failure to meet performance standards by having the same features in the replicated areas as those destroyed.
  5. Procedural errors: The DEP's presiding officer did not give any consideration to cross-examination of the developer's witnesses. The Decision did not include a determination of each issue of fact or law necessary to the Decision and therefore does not comply with Massachusetts State Law.


B) The Belmont Conservation Commission's Case involves the DEP's failure to:
    1. Make a factual finding about the rise in the level of Little Pond during flooding events which is needed to determine whether the Wetland's Protection Act is being violated.
    2.  Determine how the same engineering firm could have two different PRE-development stormwater run-off numbers for the same piece of land with the only difference being 4 years and 2 different projects.
    3. Properly consider unchallenged expert testimony that the development does not comply with a Stormwater Management Standard.

Documents
coalition_superior_court_complaint.doc
File Size: 125 kb
File Type: doc
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belmont_conservation_commission_motion.pdf
File Size: 982 kb
File Type: pdf
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