369 Mass. 709 | Mass. | 1976
One Charles H. Gould, as trustee of a real estate trust called the Marjorie Trust, petitioned in February, 1974, for mandamus to compel the respondent William J. White, as executive director of the Massa
The parties accept that the allegations of the amended complaint are to be read together with the undisputed statements of basic fact set out in the affidavit (with annexes) of the respondent-appellee White submitted in opposition to the application for the temporary restraining order. The following appears.
The critical events in the initiation and carrying out of the lending operation were as follows. On June 29, 1972, MHFA received an application from the developers for a construction loan of $17,319,640. On July 11, 1972, MHFA issued to the developers a letter of commitment in that amount, agreed to by the developers on July 23, 1972. On February 6, 1973, a further letter of commitment was issued on the same terms, but raising the amount to $18,129,985 because of increased costs; this was agreed to by the developers on February 12, 1973. On June 26, 1973, and July 2, 1973, the developers entered into contracts with the building contractors and architects, respectively, and on July 18, 1973, building permits issued from the Springfield authorities. Between July 19 and July 30, 1973, the necessary final documents covering the loans and related matters were completed and recorded. First moneys were advanced by MHFA to the developers on July 31, 1973, and by the date of the White affidavit (March 5, 1974) $2,900,000 had been advanced. (By then, it appears, work had begun on the foundation of the seventeen-story building adjacent to the plaintiff’s premises.)
The gravamen of the amended complaint was in substance that the “work, project, or activity” involved here had not “commence[d]” before July 1, 1973; consequently, under the terms of § 62,
We need not review our recent decisions on “commencement” for purposes of the environmental laws. They reflect a common-sense appreciation of when the stage of tentative planning passes to the stage of an engagement to act. See Secretary of Environmental Affairs v. Massachusetts Port Authority, 366 Mass. 755, 757-767 (1975); Marlow v. New Bedford, supra at 508-511. The thought was expressed thus in regulations of the Executive Office of Environmental Affairs promulgated under § 62 on July 6, 1973: “Projects shall be deemed to have commenced when the agency has undertaken a continuous program of action or construction or has entered into a binding agreement or other obligation to undertake and complete a continuous program of action or construction.” (Reg. 13)
In this view there is no reason to pass on other questions argued in the briefs: whether this was a proper case for mandamus or similar relief (see G. L. c. 249, § 5, as appearing in St. 1973, c.1 1114, § 291); whether the petitioner was bound to proceed by a ten taxpayers’ suit (see G. L. c. 214, § 7A, formerly c. 214, § 10A); whether the petitioner was barred by loches (temporary relief having been denied and no review sought); or whether the case was mooted by the fact that very considerable advances had been made by MHFA to the developers by the time the appeal was heard.
Judgment affirmed.
The United States Department of Housing and Urban Development (HUD), which evidently has an interest, had made a determination on June 11, 1973, that the project would have no significant adverse impact on the quality of the human environment.
As summarized in Marlow v. New Bedford, ante, 501, 505 (1976): “General Laws c. 30, § 61, establishes an official policy of environmental protection in the Commonwealth and requires that various enumerated categories of State instrumentalities use ‘all practicable means and measures to minimize damage to the environment.’ General Laws c. 30, § 62, prescribes a procedure for thorough consideration of potential environmental impact through preparation of a draft and a final EIR [environmental impact report] and through submissions of these EIR’s to interested State agencies and the public. Specifically, G. L. c. 30, § 62, provides that ‘[n]o agency, department, board, commission, or authority of the commonwealth or any authority of any political subdivision thereof shall commence any work, project, or activity which may cause damage to the environment until sixty days after it has published a final environmental impact report ... or until sixty days after a public hearing on said report . . . .’ The final EIR supplies the data for the required § 61 determination that the project, as planned, minimizes damage to the environment and for evaluation of the determination by a reviewing court.”
Section 62 provides in part: “No agency, department, board, commission, or authority of the commonwealth or any authority of any political subdivision thereof shall commence any work, project, or activity which may cause damage to the environment until sixty days after it has published a final environmental impact report in accordance with the provision of this section or until sixty days after
The interrelation between § 61 and § 62 is developed in Boston v. Massachusetts Port Authority, 364 Mass. 639, 658-665 (1974).
The same regulation directs secretaries of executive offices further to define “commenced” by regulations which shall “specifically identify a uniform phase or point, the completion or attainment of which commits the agency to the ultimate completion of a specifically planned activity.” See Secretary of Environmental Affairs v. Massachusetts Port Authority, 366 Mass, at 762.