Fells plan opponents get new hearing

SJC also agrees to dismiss 3 charges

By Kathy McCabe
Globe Staff / August 14, 2011

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The bulldozers won’t be rumbling across from Spot Pond in Stoneham just yet.

The state Supreme Judicial Court has ruled that a complaint brought by a citizens group and the City of Medford opposing a major housing and office development planned for the historic Middlesex Fells Reservation should be heard in state Superior Court.

The opinion by the state’s high court, issued Thursday, reversed a decision by Middlesex Superior Court Judge Bruce R. Henry to dismiss the lawsuit that was first filed in 2009.

The SJC found that the lower court has the authority to decide if the state should require a full environmental review of Langwood Commons, the project proposed for the former Boston Regional Medical Center site.

“The case is remanded to the Superior Court for further proceedings consistent with this opinion,’’ Justice Robert J. Cordy wrote in a unanimous ruling for the six justices that heard the appeal last May.

But the SJC also agreed with Henry’s decision to dismiss three of four counts included in the lawsuit.

One count sought injunctive relief, and a second declaratory judgment, to stop the project on the grounds that it violated the Massachusetts Environmental Policy act. A third count asked that the state Executive Office of Energy and Environmental Affairs be dropped from the lawsuit because the state agency would not be responsible for any damage that could result from the project, the opinion states.

Kerry T. Ryan, a Boston lawyer representing the developers of Langwood Commons, said the opinion proves the defendants’ claims were valid.

“We are pleased the SJC agreed with nearly all of our arguments,’’ Ryan said in an interview. “We are confident that the one limited, remaining issue the court has sent back to the trial court will soon be resolved in our clients’ favor.’’

A leader of the Friends of the Middlesex Fells Reservation praised the high court’s ruling, saying it provides renewed hope in its 12-year battle to protect the 2,575-acre urban reservation from the impact of the multimillion dollar development.

“It’s uplifting,’’ said Mike Ryan, executive director of the Friends of the Middlesex Fells. “It’s not easy for a small organization like ours to endure a long, legal case like this.’’

The group’s lawyer was more cautious, noting the lawsuit must still make its way through Superior Court. “This doesn’t direct the outcome,’’ said Barry Fogel, a Boston environmental lawyer. “It only directs the proceedings to continue. . . . But we are confident.”

Langwood Commons - which would include 310 units of apartments and town houses built under the state’s affordable housing law, and a 225,000 square foot office building - is a unique project because it would be built on 40 acres of private land that is surrounded by the Fells reservation, public land managed by the state Department of Conservation and Recreation.

The development would be accessible mainly by the reservation’s winding parkways, which run along scenic land and the 340-acre Spot Pond. In 2002, the parkways, known for their scenic beauty, were added to state and federal historic registers. The reservation abuts Malden, Medford, Melrose, Stoneham, and Winchester.

The Friends group has argued that traffic generated by the development would require changes to the roadways. “These parkways are integral to the natural setting,’’ Ryan said. “Any change, or alteration, would really cut the heart out of the beauty of the Fells.’’

Developers, which include the Gutierrez Co. of Burlington, originally proposed rebuilding at least a portion of the parkways to accommodate increased traffic. The improvements would have triggered a review under the Massachusetts Environmental Policy Act.

But Gutierrez later reduced the size of the project so the parkways did not have to be reconstructed. Eventually, an agreement was reached with the state Executive Office of Energy and Environmental Affairs to put $1.8 million into escrow to pay for two rotaries and any other road improvements the state may require.

In late 2009, the Friends Group and the City of Medford filed a complaint in Middlesex Superior Court, seeking to force the developers to conduct a full environmental review of the project.

Defendants in the case included Fellsway Development LLC, Langwood Commons LLC, the state Executive Office of Energy and Environmental Affairs, and the state Department of Conservation and Recreation.

In March, 2010, Henry granted a motion filed by the defendants to dismiss the case, on the grounds that it did not belong in Superior Court.

The Friends group and the City of Medford appealed that decision to the SJC in May 2010. A hearing was held on May 5, 2011, with the ruling announced last week.

The SJC ruling means the legal battle will continue. A court date for a new hearing has not been scheduled, Fogel said.

“We wanted to be heard in Superior Court, and now, the SJC has said ‘You have the right to be heard,’ ’’ he said. “We’re encouraged by that.’’

Kathy McCabe can be reached at

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