Announcer: Calling the matter of SJC13244,
City of Boston v. Quincy Conservation Commission.
-: Okay, Atty. Timmins.
-: Thank you, Chief Justice Budd.
And good morning, may it please the court.
The issue presented in this appeal as whether
the City of Quincy's Wetlands Ordinance
is more stringent than the Wetlands Protection Act,
viewing both when applied
to the Notice of Intent filed by Boston
when it sought to rebuild the Long Island Bridge.
If the court finds Quincy's Ordinance more stringent,
then Quincy's denial under the ordinance
for Boston's failure to meet
the ordinance requirements stands,
provided there exists substantial evidence of that denial.
The briefs filed in the case focused on the provision
within the Quincy Ordinance concerning cumulative impacts,
a provision which the lower court found
not to be preempted as applied
to one of my two areas of focus today.
I plea in on reviewing first,
how our local ordinance was applied
to Moon Island Road and the work proposed
to the Notice of Intent to be done there.
And then second,
I'll review the condition
of the 71-year-old piers left behind
after Boston demolished the bridge
and now seeks to reconstruct on those same piers.
Where this is a certiorari review,
which can vary according to the nature of the action.
I will first discuss what went on
during the permitting process,
as that provides a window on the nature of this action.
And I respectfully suggest that in reviewing the process,
it's important to keep in mind
that the notice of denial that issued in this case
was based on lack of information.
And that's an important and unique component to this case.
I'd like to begin with just a brief geography lesson.
As you head out of Quincy, north toward Boston,
and take a right off of Quincy Shore Drive,
you enter the peninsula community of Squantum.
At the northeast corner of that community
is Moon Island and a road,
a causeway that leads out to Moon Island.
The entirety of Moon Island
and the causeway way leading out to it is located in Quincy,
and the land is owned in its entirety by the City of Boston.
Boston maintains a police gun range
on the island and a fire academy at the island.
The causeway connecting the island from Quincy
is known as Moon Island Road.
Moon Island Road starts in Quincy
in front of the last house in Squantum,
extends about three quarters of mile out the causeway.
-: I think, Mr. Timmins,
I think we understand that Moon Island Road is in Quincy.
Can we describe the environmental issues related
to Moon Island Road and how...
I take it and how that can connects
to your cumulative impacts argument?
-: Certainly, your honor.
The point of the geography lesson was that Moon Island Road
does not end at the end of the causeway.
It extends along the south end of the island
and it ends where the connection to the Long Island Bridge
had previously existed on the eastern end of the island.
So the reason that it's significant
and reason that it was in the Notice of Intent
as an area of concern
can be found in the plans
that are in the Administrative Record.
As a plan at page 52 of the Administrative Record,
that shows as part of the Notice of Intent,
that work is to be done at this eastern end
of Moon Island Road,
it describes work on Moon Island Road.
There's another plan on page 109
of the Administrative Record
that shows the resource areas surrounding this point.
And the concern here, your honor,
and the focus of the cumulative effects discussion
that Quincy sought to engage in
was that there's clearly work that's being done there
and when our consulting engineer inspected the road,
he said that- -: Is it wetlands work?
'Cause this is the Wetlands Commission of Quincy, right?
-: That's correct, and the wet-
-: And so, is the work on Moon Island Road
within its wetlands purview?
-: It is your honor,
because there are resource areas
and this is all shown on page 109,
the plan on page 109 and it's acknowledged in fact,
on the Notice of Intent.
The Notice of Intent to describes protected resource areas
in this eastern end of Moon Island Road.
It's why it was made part of the project.
Essentially, the work in the road is within yards
of a coastal bank.
It's within yards of the ocean water
that immediately abuts Moon Island Road,
so while there aren't wetlands per se,
there are protected resource areas in that area.
And it's clear and indisputable
that there was work to be done.
And the issue is this, your honor, in the court.
When Quincy sought to get additional information
from Boston about this work
and to engage in a colloquy about its concerns
with the current condition of the road,
and the fact that there was an abandoned sewer line
under the road.
And when Boston did its work at the end of this road,
those issues should be addressed
so that the roadway
would not continue to be a degraded location
that was an issue in the resource areas.
Boston's response was...
-: Can I ask you, counsel.
Is the degradation
on the Moon Island Road
at that juncture that's shown on record appendix 109?
-: Yes, it is, your honor.
And in fact...
-: Where can I see that in the record?
I know that you're relying on the alternative
report commissioned by the commission
by Tig, Ting and something.
Do they say that that's the location?
-: Yeah, the consulting engineer is Tighe & Bond
and then... -: Yeah, them.
-: Yes, right.
Well, it's actually found in the Notice of Intent.
There's a picture, there were pictures taken by Boston.
-: But the Notice of Intent doesn't say
that the sloping situation that's causing
again, the consulting firm Tighe and something concern.
How do I marry the concern about the sloping
with the picture shown on record appendix 109?
-: Understood your honor.
In the record appendix there's a picture
at page 143, showing the end of the roadway.
And in addition,
it shows the piers onto which the new bridges
to be constructed.
And you can see that area of degradation,
and the fact that the road, which is long been abandoned
is starting to degrade.
On the next page on page 144,
there's a few taken essentially from that spot
of the roadway looking back to the west.
So there are a couple of photos
that captured this condition.
And then to the extent the court has a concern
about the evidence in the record,
the fact of the matter is
that our consulting engineer went out
and said that this was observed,
and Boston never disputed that.
Boston instead said,
"We're not doing any work there.
So we have no responsibility."
-: Well, that's why I have the question, right?
Boston says, "We're not doing the work there."
And I wanna know where there is.
-: Understood your honor.
-: And how I can tell that from the record,
not just what you're representing here.
-: Thank you, your honor, understood.
So if you take a look at page 52, the plan there,
and you take a look on page 109 at the plan there,
they depict the same area, the different plans.
And they both show clearly
that they're at the eastern end of Moon Island,
where the work is to be done.
And that's what prompted our concern
is that this work is identified in the Notice of Intent
and its significant work.
And in addition,
there are issues there that are going to arise,
which we feel are properly analyzed
under the local ordinance,
which allows for us to look at cumulative effects
because this roadway, once the bridge comes back online
is gonna see high demand, much higher demand.
It's going from zero demand basically to high demand.
-: Did DEP look at the Moon Island Road issue at all,
or was that excluded from DEP's analysis?
-: Your honor, DEP did look at Moon Island Road.
And what DEP said
is that the Notice of Intent identifies certain work.
And that is the work that we are going to condition.
And it was the limited work
that we were looking to expand on.
So the DEP analysis and Boston's desire for-
or rather Quincy's desire for additional information
regarding the condition of the road,
essentially focus the tension in this case,
which is, how is the court,
how should local communities going forward
treat this cumulative impact standard?
We think Quincy was entirely reasonable...
-: But I'm confused, Mr. Timmins.
And maybe I'm confused a little bit actually, but...
So DEP looks at Moon Island Road,
they also look at the piers,
they analyze them separately and not cumulatively,
is that your argument and therefore
because you analyze them cumulatively under Quincy,
it's more stringent, is that the argument?
-: No, your honor.
The argument is this,
that the piers are going to be the base
for the superstructure of the bridge.
So looking at the piers themselves,
which is a second part of the argument this morning
is a separate issue.
The Moon Island Road ties in
that once this bridge is constructed,
the end of Moon Island Road,
where limited work is identified
in the Notice of Intent is going to become an area
that is the sole access point to Bridge,
it's going to become highly traveled.
-: But I understand,
but you gotta remember, DEP supersedes you
unless you're applying a more stringent standard
and you actually apply it, right?
It's not just that you have some abstract morse,
something abstractly, more stringent.
I'm just trying to understand those two steps here.
-: Understand -: Legally, I understand
you're saying there's cumul-
you have the word cumulative in your wetlands rule
and they don't,
but they're analyzing both things, aren't they?
They're analyzing Moon Island.
They're analyzing the piers
and it's not even clear you analyze,
it's not even clear you use the cumulative impact
language in your decision, is it?
Does it appear in it?
-: Well, I think it is your honor.
I think it's very clear.
And I alluded to this fact earlier,
this case is different from other cases
because what happened to Quincy
was when we asked for additional information
to analyze this Notice of Intent,
Boston's response was no, we were stonewalled,
I identify that on the brief, it's throughout the record,
I would respectfully suggest to the court
that if you take a look in the Administrative Record
at page...
-: Again counsel, I'm wondering, and this is...
And if I'm repeating Justice Kafker's question apologize,
but what is it that Quincy's doing
with its cumulative standard hat on
that was not already done by DEP or subsequently?
-: Oh, what we sought to do...
-: I know you wanted to get more information.
You were rejected out of hand, I get that.
Well the in perm- -: What is it that
you would do if you had the information?
Like, how is it different,
since you're saying the end of Moon Island Road
was in the Notice of Intent almost by definition,
it was something that was considered by DEP
when it did its superseding order of conditions?
-: Well, DEP considered impacts on roughly 160 feet
or 160 square feet of area that was identified
in the Notice of Intent.
What Quincy said,
bringing its local knowledge to the forefront here,
and I just cite that in Healer versus DEP,
that was something that was cited,
that the familiar purpose of bringing local knowledge
to bear on local conditions
is a significant reason why
local conservation commissions are handed
with the obligation to review Notices of Intent
on the first instance.
We went out, we had our consulting engineer go out
and look at the site,
and with the plans,
and there's an abandoned sewer main there.
There's a degraded road and Boston say,
"We're gonna pop a drain system in here,
and we are going to saw cut some road."
And they minimized the work that was being done.
And after that,
they denied any work was being done there.
And that's where the real problem is
in response to what Judge Kafker asked earlier,
how did we apply
our local provision regarding the impact?
We weren't able to.
And this is what was frustrating,
part of what happened in front of the DEP was they said,
"Everything was speculated, we had no information."
Well, it was not for lack of asking.
We were looking for information
in order to fully evaluate
and determine what the impact might be going forward
so that we could further mitigate against that impact.
And that's what
happened there. -: Can I,
I'm just trying to pin you down a little bit
and it's a follow up to Justice Wendlandt's question.
So you mentioned that the DEP considered 165 feet,
are you saying that under your cumulative impact analysis,
you wanted to look beyond 165 feet?
Is that what you're saying?
'Cause I'm just trying to connect fact and law here
and yeah, go ahead.
-: No, I understood your honor.
I understand the problem.
We've been trying to answer it for a couple of years now.
Yes, what I would do is say this,
that if one looks at in the appendix at page 52,
Boston's proposing certain work.
We want to expand the area around that work,
which clearly is identified there.
Moon Island Road is clearly identified there.
We're saying that other parts of Moon Island Road
and that area where your proposing work are failing.
And so what we'd like to do
is based on the fact under our local ordinance,
we're entitled to address future impacts
and we're understanding that once you put that bridge there,
this road's gonna come online,
and it's failing,
and you're looking at working at a little part of it.
We want you to look at a larger section of it
and that's what we ask them to do.
And this... -: Right, but again,
the battle is not with Boston as much as with DEP
for our purpose is.
Did DEP also confide its analysis to the 165 feet?
Or did they do what you're talking about
and say, "Look, we don't see Moon Island Road,
having any wetlands impacts that haven't been considered."
-: Right, DEP did not do what I'm talking about
or seeking.
And your honor, just to be clear here,
I didn't include the DEP material, but Boston did.
It's part of an appendix to Boston's brief.
And there's a decision by again,
by a Superior Court Justice that reviews in its entirety
and very thoroughly what DEP did.
So to the extent, the court's interested in looking
what DEP did, you would be able to do that.
We were looking at something a little different
and essentially what I would say
is that Quincy never get out of the batter's box here
because we were obstructed by the applicant.
And I think the danger here is
that when an applicant comes in
and dictates what's going to go on
in the conservation commission hearing and limits
what information the commission's
gonna be allowed to evaluate.
That's a real problem.
And that's an additional issue here
that is what has prompted the concern.
Well beyond my time,
if there are no more questions then,
I thank the court and thank you for the extra time.
-: Thank you very much.
Atty. Nabulsi.
-: May it please the court.
My name is Sammy Nabulsi for the City of Boston.
When the City of Boston announced its intentions
to rebuild the Long Island Bridge superstructure,
it established two important criteria for the project.
The first,
to reestablish the sole vehicular access
to existing public health facilities on Long Island,
so that they may be repurposed
as a recovery campus to support individuals suffering
from opioid and other substance use disorders.
And the second relevant here,
that construction period and post construction impacts
minimize impacts to environmental resources.
So when the City of Boston submitted its Notice of Intent
to the Quincy Conservation Commission and the DEP,
under the Wetlands Protection Act and the local ordinance,
it put forth a project
that has zero permanent impacts to wetlands.
So when the DEP...
-: Does the project counsel,
does the project include any work on Moon Island Road?
-: Your honor, it doesn't.
And earlier you asked...
-: Is does or does not?
I couldn't hear what, was that a does or does not?
-: It does your honor.
And to orient this court,
Moon Island Road starts at guardhouse
at the beginning of the causeway.
In the Administrative Record at 48,
and also in my brief at page 16 is a site locus map.
That road extends from the guardhouse
through the causeway on the opposite end of Moon Island,
across Moon Island to the bridge approach roadway
across the bridge and to Long Island.
So the question isn't,
or is the project proposing any work to Moon Island Road?
The bridge is Moon Island Road,
but it is where the project proposes activities.
Justice Wendlandt,
you asked the question to the City Solicitor,
how do I marry the work
that the Quincy Conservation Commission was asking about
with the work proposed by Boston?
And the answer to that is you can't marry the two.
Why? Because the City of Boston simply does not propose work
to Moon Island Road in the area that the consultants
were asking about.
In that's scene in the Administrative Record at page 212,
they refer to these issues as the causeway,
which is on the opposite side of Moon Island
from the bridge approach.
Where the Quincy Conservation Commission
is factually inaccurate,
is that it tries to say that Boston does not quantify
or talk about its impacts to Moon Island Road,
that's simply not true.
In the Administrative Record at page 40,
Boston discusses all of the impacts
and all of the proposed repairs, and work
to Moon Island Road in the area of the project.
Why? Because under the ordinance itself,
applicants section three of the ordinance,
applicants are to submit such plans
and information necessary
to describe here's the important part,
proposed activities and their impacts
to environmental resources.
-: But you don't get the...
You can't, I mean, you have to address the impacts, right?
If opening this facility is gonna transform
the use of the road, including right,
you propose some kind of water sew-
I can't, there's some kind of water retention
on the road that you propose creating, right?
That's in the project, right?
-: Yes, your honor.
-: So there is impacts on the road,
and when they have a cumulative impact analysis,
can't they take into account,
the more of the road than you wanna talk about,
or is that not the case?
-: Your honor, I think that the confusion stems
from an inaccuracy stated
by the Quincy Conservation Commission.
I do not know where the commission pulls
this 165 square foot impact from.
In its application to both the commission and the DEP,
the City of Boston does quantify and does discuss all,
all of the impacts proposed to Moon Island Road.
In the Administrative Record at page 40,
it's not 165 square feet.
You'll find in the Notice of Intent
that the city of Boston proposes 592 square feet
of temporary impacts to wetland resource areas,
but then the City of Boston quantifies,
it puts in front of the commission,
you'll see the plan sheet in the Administrative Record
at page 52, the 5,218 square feet
of temporary impacts to Moon Island Road.
What does that work include?
Again, discussed in the Administrative Record,
in the Notice of Intent at page 40,
the removal of the pavement
for the installation of the water quality structure,
to improve stormwater management,
repaving that road, repair and replacement of the abutment,
repair and replacement of the concrete slab,
which will support...
-: And I don't mean to cut you off,
and does DEP consider when...
'Cause again, our focus is not the fight
between you and the City of Quincy,
but rather whether DEP
and the City of Quincy's Wetland Commission
are doing two different things.
And so, is your description of the road before DEP,
and does DEP say, "Okay, that's fine."
Is that part of their analysis?
-: Yes, your honor.
DEP look to at the same work
that was proposed on Moon Island Road,
that is in the application
to the Quincy Conservation Commission
and that's in the application
to the Wetlands Protection Act.
We know that because
they noticed... -: And do they rule
on that Mr. Nabulsi?
Do they rule that way?
Do they say, we find whatever their magic words are,
we find no impact?
-: Yes, your honor.
And the magic words that the DEP is that
they did review all of the proposed temporary
and permanent impacts to all of the resource areas.
That includes the 5,218 square feet of temporary impacts
in the buffers zone on Moon Island Road,
which the City Solicitor points to.
And their magic words and what they found
in the superseding order of commission,
superseding order of conditions
is that the project minimizes impacts
on wetland resources and complies
with all of the performance
and stormwater management standards found
in the wetlands regulations
at title 310 sections 10 and forward.
-: Okay, and I don't mean to be a pest,
but I'm just following up.
So the next question I have is
this cumulative impacts and the Cave case, whatever that...
By Chief Justice Green on the Appeals Court,
the Cave decision.
So do they...
The Quincy is saying that
because we have this word cumulative
in our wetlands regulations,
it's a different type of analysis
of these than what DEP does.
And there's some support for that in Cave, right?
That when you have this language about cumulative impacts,
at least when they're...
It requires a different type of analysis that's covered.
So how do you address that?
-: Your honor Cave Corporation is actually,
totally an opposite here.
And this is why,
the City of Boston agrees
that in Cave Corporation,
they found that the Attleboro Wetlands Protection Ordinance
is more stringent than the Wetlands Protection Act,
but the Appeals Court does not rely
on the cumulative adverse effect language at all.
Instead it relies on two totally separate provisions...
-: Well, that's an overstatement, right?
They do rely on it, they bring it up and they talk about it,
-: Right? -: Your honor,
that isn't in the context of stringency.
It's actually in the context of the second piece
of the analysis,
which is whether the denial was arbitrary and capricious,
but before we even get there,
this court needs to address whether the ordinance
is in fact more stringent.
And the reason Cave Corporation
is not instructive on that issue at all
is because Cave Corporation relies on two other provisions
of the Attleboro Wetlands Protection Ordinance.
The first is unlike the Wetlands Protection Act,
the Attleboro Wetlands Protection Ordinance
creates an additional resource area called Vernal pools.
Vernal pools are not regulated
by the Wetlands Protection Act.
Although in some resource areas,
Verna pool habitat may appear as a resource area value.
The second was...
-: So we just read...
So the Cave Corporation discussion of cumulative impact
is basically irrelevant?
-: Yes, sir.
-: And it has no, going forward,
you want us to interpret the language in Cave Corporation
to say, cumulative in and of itself doesn't mean anything,
or what do we do with that language
'cause it's in there, and I mean,
it begins the court's analysis, doesn't it?
-: Your honor,
it's in there on the arbitrary and capricious issue,
but again, Cave Corporation doesn't point to it
out on the stringency issue.
And the other piece of that ordinance is that
under the Attleboro Wetlands Protection Ordinance,
it creates what is called a "Wetlands Protection Zone"
that is essentially a 25 foot no build zone
that extends from the edge of a wetland resource area.
There isn't such a no build zone
in the Wetlands Protection Act.
Now turning to the cumulative adverse language.
In Cave Corporation,
the court points to that as allowing
the Attleboro Wetlands Protect-
Attleboro Conservation Commission, sorry,
to look at the entire subdivision plan
that was put forth before the commission
and not the segmented broken up project
that the applicant in that case did put before
the Attleboro Conservation Commission.
But importantly,
in that case the court looks to
what the Attleboro Wetlands Protection Ordinance
actually says about cumulative adverse effects.
Unlike the Quincy Wetlands Protection Ordinance,
the Attleboro Wetlands Protection Ordinance actually defines
what is a cumulative impact.
And it calls on the Attleboro Conservation Commission
and I'll quote,
"To take into account the cumulative of adverse effects
of loss, degradation, isolation,
and replication of protected resource areas
throughout the community and the watershed
resulting from past activities,
permitted and exempt, and foreseeable future activities."
And it includes in the definition that to alter,
which is the hook
to conservation commission review,
it includes incremental activities
which have, or may have a cumulative adverse impact.
So what the Appeals Court does in Cave Corporation
and they say, "Hold on a second,
this applicant filed two different Notices of Intent."
One Notice of Intent is for a roadway improvement project,
the other Notice of Intent
is for the actual construction of the homes
within the subdivision.
And the Appeals Court says that the commission could look
at this cumulative adverse language
in the ordinance as giving them the authority
to look at the entire subdivision plan as a whole
and not just the roadway improvement project,
and that is not arbitrary and capricious
under its ordinance.
The reason why that case is in opposite here is
the City of Boston is not breaking up a project.
In the Administrative Record of page 221,
this was a memorandum submitted
by the City's Chief of Streets
to the Quincy Conservation Commission,
when asked about Moon Island Road,
the City of Boston's response is simple,
with respect to the causeway,
the City of Boston does not propose any work
to the causeway.
To the extent that there is work proposed
with respect to Moon Island Road,
all of that is quantified and described
in the Notice of Intent, the same quantification,
and work that was also before the DEP.
So when the DEP issued its superseding order of conditions
that muted and superseded the denials, why?
Under the Wetlands Protection Act and the ordinance,
the applicable resource areas are the same.
The way in which the ordinance and the act delineate
and find the boundaries of these resource areas
are the same.
The performance standards against which these,
the work in the resource areas is measured against
are the same.
And the information that is requested
both in the Wetlands Protection Act
and under the Quincy Wetlands Protection Ordinance
in section three is the same.
Which are the plans and information necessary again,
to describe the proposed activities
and their impacts to environmental resources.
Your honors,
even if this court were to find
that the cumulative adverse effect language
is somehow more stringent
than the Wetlands Protection Act,
even though it's undefined
and does not put any notice on an applicant,
what that could mean or what needs to be in an application,
the denials are still nonetheless arbitrary
and capricious first
because the denial and the information sought relies
on criteria extraneous
to the Quincy Wetlands Protection Ordinance.
Part of the Quincy Conservation Commission's focus
is on the issue of the integrity of the piers.
There is ample information in the record about
the testing and the sufficiency of the piers,
and the repair and strengthening protocol
to support the superstructure for 75-year design life.
But putting that aside, there's nothing
in the Quincy Wetlands Protection Ordinance
that talks about building materials,
testing that needs to be conducted for building materials.
What building materials are preferable against others.
And what is the problem with that?
This court, and the Appeals Court has said time
and time again, that it is essential
in the administration of land use controls
that there be predictability, reliability and uniformity.
An applicant who's developing a project
before putting together an application coming up with plans,
coming up with testing protocol,
deciding the materials and the design,
will have no idea and no notice
by looking at the Quincy Wetlands Protection Ordinance,
that this is the type of information
or the type of testing that will be required,
especially here where the ordinance doesn't protect it
with respect to materials or uses.
It protects wetlands.
The City of Boston's project,
proposed a zero impacts, temporary or permanent
associated with the pier repairs,
but nonetheless, that information was provided.
And without that criteria, again,
the Quincy Conservation Commission
has never actually promulgated any regulations
or design criteria,
despite the fact that that's referenced in its ordinance,
in the absence of regulation or criteria,
that leads to the kind of arbitrary, capricious, one off
and idiosyncratic decision making,
which we saw here,
when the Quincy Conservation Commission denied
the first project in September 2018, since at least 2016,
which is far back as public records of the commission go.