By SCOTT JACKSON
The state’s highest court on Monday ruled in favor of the city Boston in the dispute over the Long Island Bridge, finding the Quincy Conservation Commission’s denial of a permit for the project was properly preempted by a subsequent order issued by state regulators.
Quincy argued before the Supreme Judicial Court (SJC) that Quincy’s local wetland ordinance contains language that is more stringent than the state’s Wetlands Protection Act, and thus the commission’s denial can stand despite the superseding order of conditions from the Massachusetts Department of Environmental Protection (DEP). Writing for a unanimous court on Monday, Justice David Lowy ruled that was not the case.
“The commission claims it relied on the local ordinance’s reference to ‘cumulatively adverse effect[s] upon wetland values,’ and that this language is more stringent than the language in the act. However, we conclude that the DEP order supersedes that of the commission because the commission did not rest its determination on more stringent local provisions,” Lowy wrote in the 17-page decision.
In a statement, a spokesperson for Boston Mayor Michelle Wu called Monday’s ruling a major victory.
“This major victory for Boston protects our authority to serve our residents with the greatest needs. Today’s decision will allow Boston to continue exploring the potential and opportunities on Long Island to connect our residents with substance use disorder services and housing,” the statement said. “We look forward to collaborating with our local and state partners to ensure that every person impacted by substance use has a path to a stable recovery and housing.”
Quincy Mayor Thomas Koch’s Chief of Staff, Chris Walker, said the court’s decision does not clear the way for construction of the new bridge, and Quincy will continue to challenge the proposed bridge through all available avenues.
“While today’s ruling is not the one the City had hoped for, it is narrowly focused on only the single issue before the Court – not the myriad of additional serious, substantive environmental and structural concerns that we’ve raised and are still outstanding in various venues,” Walker wrote in an email.
“The ruling is not remotely close to a green light for a new bridge, and the City is going to continue to press its case through all available avenues that the City of Boston has proposed an environmentally and structurally deficient bridge design that would’ve only been acceptable had it been permitted when the bridge was originally built almost a century ago.”
Then Boston Mayor Marty Walsh in January 2018 announced plans to rebuild the Long Island Bridge and open a recovery campus on the island. Under Boston’s proposal, the piers that held up the former Long Island Bridge – which was built in 1950 and razed in 2015, after it was closed without warning the previous year because of concerns about the integrity of the superstructure – would support the new bridge superstructure.
The bridge would connect Long Island, which is within Boston’s city limits, with Moon Island, which is within Quincy’s limits and fully owned by Boston. Moon Island is accessible via a causeway from the Squantum neighborhood in Quincy, though the island is not open to the public.
Koch and other Quincy officials were quick to oppose the proposal to rebuild the bridge, citing the impact its reopening could have on traffic in Squantum and other parts of the city.
The Quincy Conservation Commission denied Boston’s application to rebuild the bridge later on in 2018. In its decision, the commission stated Boston had not provided sufficient information about how Boston would mitigate the environmental impacts of repairing and replacing the piers as well as repairing the road that provides access to the bridge.
Following that denial, Boston sought a superseding order of conditions from the DEP and also appealed the ruling in Superior Court. The DEP did grant a superseding order of conditions for the project, which overruled the commission’s denial, and a Superior Court judge remanded the matter back to the commission so members could consider additional information; the commission denied the permit once again after the information was submitted.
After the case returned to Superior Court, a judge in late 2020 ruled in favor of Boston, finding that the project would be governed by the DEP’s superseding order of conditions. The city of Quincy appealed that decision and that appeal was heard by the Supreme Judicial Court.
As it had in Superior Court, Quincy argued in its appeal before the high court that the city’s local wetlands ordinance is more stringent than the state’s Wetlands Protection Act. In Monday’s ruling, the SJC said Quincy did not explain how the commission’s analysis differs from the analysis undertaken by the DEP.
“The commission claims it relied on the local ordinance’s reference to ‘cumulatively adverse effect[s] upon wetland values,’ and that this language is more stringent than the language in the act. According to the commission, it did not have enough information to determine the cumulative effects of the work that would occur on the piers and the access road,” Lowy wrote.
“The commission does not explain in its brief, and did not explain in its decisions denying Boston’s application, how its own analysis differs from the analysis that the DEP was authorized to perform. Accordingly…we conclude that the DEP’s superseding order of conditions preempts the commission’s determination.”
In terms of the environmental impacts associated with repairing the piers, the high court stated that the “regulations that the commission cited in its initial decision exclusively were DEP regulations supplementing” the state Wetlands Protection Act.
“Therefore, the commission did not rely on the local ordinance for its decision on the piers. As such, the DEP’s analysis regarding the piers controls because the DEP’s interpretation of the act supersedes that of the commission,” Lowy wrote, pointing to a 2016 ruling in a different case by the state’s Appeals Court.
“Moreover, even if the commission also applied the local ordinance to the piers, its analysis cannot stand because the ordinance does not treat more stringently than the act the factors that the commission considered.”
The SJC noted the Quincy Conservation Commission was concerned about “the impact that the piers would have on fisheries, wildlife habitat, pollution, land under the ocean, and land containing shellfish,” all of which are considered by the Wetlands Protection Act.
Quincy’s local ordinance, the court continued, “also references these factors, but does not provide rules or definitions more stringent than those found in the act and the regulations. Rather, the local ordinance is concerned almost entirely with the procedure for permit applications.”
“These sections do not give the commission additional authority over fisheries, wildlife habitats, pollution, land under the ocean, or land containing shellfish that the DEP does not also have,” Lowy wrote.
Quincy had also argued the commission was provided with insufficient information on the wetlands impacts associated with repairing the access road to the bridge. The commission cited a memorandum from its engineering consultants that found the roadway would need additional work that Boston had not included in its notice of intent.
In Monday’s ruling, the court said that the DEP was required to consider all impacts associated with repairing the access road.
“The impacts with which the commission s consultants and the commission were concerned were within the DEP’s purview,” Lowy wrote.
“The DEP addressed the access road in its superseding order of conditions, stating that, according to the notice of intent, approximately 126 [square feet] of buffer zone will be permanently altered as a result of roadway and lighting improvements. The DEP also cited the assertion in Boston’s notice of intent that “5,218 [square feet] of buffer zone associated with coastal bank . . . will be temporarily disturbed.’”
Lowy continued, noting that, “If the DEP thought that there were other road-related impacts affecting wetlands, it was required to address them – even if they concerned parts of the access road outside the areas addressed by,” the Wetlands Protection Act.
The DEP could have also denied Boston’s application if, like the commission, it felt Boston had not provided adequate information, the court stated.
“If DEP agreed with the commission that Boston had presented insufficient information about impacts related to the access road, it would have denied Boston’s application on that basis,” Lowy wrote.
“Accordingly, the superseding order of conditions preempts the commission’s decision to the extent that the commission’s decision was premised on impacts related to the access road.”