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dbailey

Daniel Bailey

This author Daniel Bailey has created 3 entries.

  • June 10, 2020

First Circuit Compressor Station Decision Vacates DEP Air Permit, Addresses Environmental Justice and Noise Issues

Environmental
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On June 3, 2020, the U.S. Court of Appeals for the First Circuit vacated an air permit issued by the Massachusetts Department of Environmental Protection (DEP) and remanded the matter to the agency for further analysis. The case is Town of Weymouth v. Massachusetts Department of Environmental Protection. The First Circuit’s decision is linked here.

The case involves a fiercely opposed compressor station planned for existing industrial property in Weymouth, Massachusetts. This compressor is critical to Algonquin Gas Transmission’s Atlantic Bridge project, which will move natural gas from the Boston area to a new connection in Beverly, Massachusetts, to then be transported to consumers in New Hampshire, Maine, and New Brunswick.

The Town of Weymouth and other petitioners challenged many aspects of the air permit, and succeeded in forcing DEP to revisit its BACT (best available control technology) analysis. My colleagues Randy Rich and Emily Dupraz discuss the environmental and energy law implications of the decision

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  • April 23, 2018

Appeals Court Interprets Chapter 91 License as Extending Private Way Over Lawfully Filled Land

Chapter 91, Easements
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The Appeals Court’s recent decision in Maslow v. O’Connor at first glance appears straightforward. The holding reiterates a familiar tenet of Chapter 91 licensing – that a Chapter 91 license doesn’t affect pre-existing property rights. But the result is quirky: in the name of preserving access to tidelands, the court in effect extends a private way over filled tidelands in which public trust rights (the right to “fish, fowl and navigate”) have been extinguished.

The basic facts in Maslow are:

  • Plaintiffs own lots abutting Rackliffe Street in Gloucester, which runs north-south and originally extended to the mean high water mark of Wonson’s Cove.
  • Defendants own waterfront lots on either side of Rackliffe Street at its southerly end.
  • In 1925, defendants’ predecessor was granted a Chapter 91 license authorizing her to build a seawall and place fill behind it, which created a strip of upland (the grassy strip) between the end of Rackliffe Street and
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  • December 04, 2017

Mass. SJC Says Chapter 40B Doesn’t Authorize Override Of Municipally-Held Property Restriction

Affordable Housing, Restrictions, Zoning
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In its recent decision in 135 Wells Avenue, LLC v. Housing Appeals Committee (pdf), the Massachusetts Supreme Judicial Court (SJC) confirmed that a property restriction held by a municipality cannot be overridden by the municipality’s zoning board of appeals – or by the state’s Housing Appeals Committee (HAC) – when acting on an application for a comprehensive permit under M.G.L. c. 40B.  Chapter 40B is the Massachusetts statute that promotes the construction of affordable housing.

In 2014, a developer, 135 Wells Avenue LLC, applied to the City of Newton Zoning Board of Appeals (ZBA) for a comprehensive permit to build a 334-unit residential development on a 6.3-acre lot in the city’s Wells Avenue Office Park. The lot is part of a larger parcel that is subject to a property restriction held by the city.  This restriction limits the permissible uses on that larger parcel to certain uses allowed in Newton’s limited manufacturing zoning district.  Residential uses are not allowed.  The developer argued that the

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