Is it July already? Slide into your hammock with this beachside edition of the Miyares and Harrington LLP newsletter while maintaining proper social distance. You can continue to stay up-to-date with COVID-19 guidance by reviewing the Client Alerts on our website or by signing up for the Client Alerts.
 
We are pleased to report that the firm’s dedicated lawyers led by J. Raymond Miyares, in a case argued by Bryan Bertram, won a significant victory in the First Circuit Court of Appeals in the fight against the Weymouth gas compressor station. Details below.



This month's newsletter features:
  • DEP Must Perform an Independent Analysis of BACT, Says the First Circuit

  • Collecting Civil Penalties: Follow Requisite Procedures or Collect Nothing

  • FID and the Unsuitable Person Process

  • Rapid Fire Update: MassDOT Shared Streets and Spaces Funding Program

  • Trivia
DEP Must Perform an Independent Analysis of BACT, Says the First Circuit
Earlier this month, the Town of Weymouth, represented by our own Ray Miyares, Bryan Bertram, and Katherine Stock, won its challenge in the First Circuit Court of Appeals to Algonquin Gas Transmission’s Air Plan Approval for a gas compressor station. The First Circuit held that the Department of Environmental Protection did not follow its own guidance for determining the Best Available Control Technology (BACT), vacated the permit, and remanded the matter to DEP for further proceedings.
 
BACT is the standard for selecting the technology that is to be used to reduce air pollution emissions—in this case, nitrogen oxide (NOx). Generally, DEP employs a 5 step BACT analysis. In the first step, all control technologies are identified. Next, technically infeasible options are eliminated. The next step ranks all remaining control technologies by control effectiveness. Then, the most effective controls are evaluated and results documented. Finally, the BACT is selected.
 
Algonquin applied this five-step analysis and concluded that a gas-fired SoLoNox turbine was sufficient to control NOx for the facility. Without further independent analysis, DEP agreed. Weymouth argued to DEP that Algonquin should have considered an electric motor to power the compressor station. In a revised application, Algonquin took the position that this option was excluded for several reasons, including the high cost of upgrading the existing power infrastructure.
 
During proceedings before the administrative hearing officer, both Algonquin and DEP argued that the electric motor option was properly excluded from Step 1 of the BACT analysis as an impermissible project redesign. The Presiding Officer was not persuaded by this argument, but instead found the electric motor would properly be excluded at Step 4 of the BACT analysis as not cost feasible, based on the testimony of a sole Algonquin witness, who estimated that the necessary infrastructure upgrades would cost between $9 million and $12 million.  Town of Weymouth v. Mass. Dept. of Environmental Protection, No. 19-1794 (1st Cir. June 3, 2020.
 
Neither the Presiding Officer nor anyone on behalf of DEP provided a full analysis of cost effectiveness, as required by agency guidance. Instead, DEP argued that the $9-12 million infrastructure cost is so high that the cost effectiveness, if calculated, would necessarily exceed the cutoff for financial feasibility. In its own detailed analysis, the First Circuit found that, without a more detailed explanation from MassDEP, it could not agree. After attempting to run the mathematical calculations necessary to make any cost-effectiveness determination based on the evidentiary record, the First Circuit concluded that “DEP’s established BACT protocol requires a cost-effectiveness analysis before eliminating a technology at Step 4, and the results of such an analysis do not strike us as so obvious as to overlook as harmless DEP’s failure to either follow that protocol or at least do enough to make it appear that the following protocol would eliminate the electric motor as a cost-effective option.” The Court held that DEP’s decision to exclude the electric motor was arbitrary and capricious before vacating the permit and remanding the matter to the agency to conduct further proceedings.

Collecting Civil Penalties: Follow Requisite Procedures or Collect Nothing
The recent Appeals Court case of Maroney v. Planning Board of Haverhill, 19-P-566 (Appeals Court June 15, 2020) highlights the pitfalls for municipalities that seek to collect civil penalties for bylaw or statutory violations without following all necessary steps. The building inspector of the City of Haverhill had an ongoing issue with a developer of a 55-unit subdivision. The building department issued several building permits but subsequentky refused to issue building permits and issued cease and desist letters threatening imposition of monetary penalties if a condition of the development’s special permit was not fulfilled.
 
The developer filed suit in Superior Court to compel issuance of the building permits, and the building inspector filed a counterclaim seeking to collect civil penalties under three different provisions of the law: The local City ordinance, M.G.L. c. 40, § 21D, and the State building code M.G.L. c. 148A, § 2. The building inspector prevailed at Superior Court , but the Appeals Court ruled against the building inspector on all three grounds:
 
  • The Court ruled that M.G.L. c.40A, §7 gives municipalities the authority to impose penalties, but only pursuant to the process set out in Burlington Sand and Gravel, Inc. v. Harvard, 31 Mass. App. Ct. 261 (1991), which requires either that the municipality file a lawsuit for injunctive relief in Superior Court or file a criminal complaint in District Court or Superior Court pursuant to M.G.L. c. 40, § 21. Burlington Sand and Gravel does not allow for collection via counterclaim, as the City had attempted here.
  • If provided by bylaw or ordinance, the procedures for noncriminal disposition pursuant to M.G.L. c. 40, § 21D may also be followed. In this case, the City never sent the developer the required notice under Section 21D of the amount of the penalty and the option to pay in lieu of appearing in District Court.
  • The reliance on the State building code was similarly unavailing. M.G.L. c. 148A, § 2 requires that the municipality provide notice to the offender of the specific code violations, the amount of the assessed penalty, and the option to pay in lieu of appearing before the municipal hearing officer. The cease and desist letters that the City relied upon for notice did not specify the amount of the fine, nor did they inform him of his right to pay or seek a hearing.
 
Dracut appealed the arbitrator’s award to Superior Court. The Superior Court vacated the arbitrator’s award on the ground that the award exceeded the arbitrator’s authority by “infringing on the nondelegable authority of the fire chief” to manage the Department and make decisions regarding public safety. The Appeals Court, however, reversed the Superior Court’s decision. It recognized that the non-delegable authority doctrine requires that some issues be “reserved to the sole discretion of the public employer so as to preserve the intended role of the governmental agency and its accountability….” With respect to the Fire Chief, the Appeals Court acknowledged that M.G.L. c.48, §42 (the “strong Fire Chief” statute) grants fire chiefs “full and absolute authority in the administration of the department,” including the authority to make all “rules and regulations for [the Department’s] operations….” The Court was not persuaded, however, that this authority was sufficient to permit a change of policy with respect to attendance at union meetings without bargaining.
 
The decision does include one silver lining for municipalities. The counterclaim sought assessment of civil penalties for illegal activity from the date that it began until the date he stopped upon receipt of the letters. The Appeals Court stated that it was not ruling that a municipality could never collect penalties retroactively, that is, to the time before the offender is told to stop.
 
We assume, although we need not decide, that fines may be imposed for actions that took place prior to the issuance of a notice or cease and desist order. A person should not be able to violate the State building code and local bylaws without risk of civil penalty, so long as they fall into line once they are caught. The extent to which such retrospective fines can be imposed on a daily basis, as the city attempted to do here – and if so, for how far into the past – are questions for another day. All we hold here is that the city did not follow the necessary procedures to impose the fines at issue.

FID and the Unsuitable Person Process
M.G.L. c. 140, § 129B formerly permitted a licensing authority to deny a firearm identification card (FID) only if the applicant was a “prohibited person” under the statute. The statute was amended effective January 1, 2015, to add subsection 129B (1½) to provide for another grounds for denial – a finding that the applicant is an “unsuitable person.” The denial cannot be made by the licensing authority, however. The licensing authority must petition the District Court for a finding that the applicant is unsuitable.
 
A subsection of the statute (§129B (3)) requires that the licensing authority either approve or deny the FID under the prohibited person standard within 40 days. In Town of Plymouth v. Power, 18-P-1362 (Appeals Court May 29, 2020), the Town petitioned the District Court for a finding that the applicant was unsuitable, but not until over 100 days had passed since the applicant filed for his card. The question, then, was whether the petition to the District Court required by Section 129B(1½) must also be filed within 40 days and if it is not, what is the effect of the untimely filing?
 
The District Court held that the 40 day deadline applied to the filing of the petition and the consequence was constructive approval of the card. It further held, in the event another court disagreed with its remedy, that the Town’s petition setting forth the reasons that the applicant was unsuitable were neither arbitrary nor capricious. The Superior Court agreed that the 40 day deadline applied, but disagreed that the card had been constructively approved. It further agreed that the Town’s decision was not arbitrary or capricious.
 
The Appeals Court disagreed with both lower courts. It stated that the statute means the following:
 
  • Regardless whether the petition to the District Court must be filed within 40 days of the filing of the application for an FID, a question that the Appeals Court did not need to answer for its decision in this case, the remedy if the Town fails to file the petition is not constructive approval of the FID. The applicant’s remedy is to petition for relief with the District Court pursuant to G.L. c. 140, § 129B(5).
  • The District Court is required to make the finding whether the applicant is suitable or unsuitable. It does not apply the “arbitrary and capricious” standard to the assertions included in the Town’s petition.
 
If your municipality wishes to petition for a finding of unsuitability of an applicant for an FID card, it is best not to delay. But you should still file the petition even if more than 40 days have elapsed since the application for an FID card was filed.

Rapid Fire Update: MassDOT Shared Streets and Spaces Funding Program

MassDOT has announced a $5 million grant program to municipalities to launch or expand, temporarily or on a permanent basis, improvements in public rights-of-way and off-street parking. Grants will be accepted on a rolling basis between June 22 through September 27, 2020. The program is streamlined for immediate expenditure. Learn more here.


Trivia!
 
Question: Continuing with superlatives, where is the longest mountain coaster in North America?
 
Last issue's question: Before 1959, what was the longest vertical lift bridge in the world?
 
Answer: The Cape Cod Canal Railway bridge. It remains the second longest in the world. Darned New Jersey.
 
Winner: Congratulations to William Bowler, Moderator for the Town of Hamilton. Bill and Mark Abrahms are neck-and-neck for induction into the inaugural class of the M&H Trivia Hall of Fame.


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