Community leaders react to Friday ruling denying injunction to prevent demolition of Notre Dame des Canadiens before state review is completed
In reaction to the late Friday ruling by Justice Sabita Singh of the Massachusetts Appeals Court, which upheld Worcester Superior Court Judge James Gavin Reardon Jr.’s Monday denial of an injunction to prevent demolition of Notre Dame des Canadiens before state review is completed, plaintiff and Save Notre Dame Alliance co-leader Ted Conna has released the following statement:
First of all, let me be clear that while public support for saving Notre Dame remains very strong, and the Save Notre Dame Alliance will continue fighting to save it, these rulings are a serious blow to our efforts. This is my first experience as a plaintiff in a civil action, and I’ve learned a lot, including the limitations of attempting to use the courts to enforce the law. We continue to believe that the Massachusetts Environmental Policy Act (MEPA) has been violated, and our civil action on that point is still active before the Superior Court. However, with no injunction to postpone demolition of Notre Dame, even if we were to win the civil action, the damage we sought to prevent could already be done.
Justice Singh barely addressed the underlying issues in the case, saying simply that she did not see a clear error of law or abuse of discretion in Judge Reardon’s ruling, and would therefore not intervene to change it. We disagree with both jurists, because we continue to believe that Judge Reardon’s decision does contain important errors of law.
Some may accuse me of arrogance for the explanation that follows, because I am a non-lawyer taking issue with lawyers’ decisions on points of law. But as a longtime environmental activist, I am quite familiar with how the MEPA review process works, and anyone who has interacted with the MEPA process can tell you that Judge Reardon has misinterpreted the law.
For a MEPA review to be required, as we contend it is in the case of Notre Dame, two things are necessary. First, MEPA must have jurisdiction, which is the case whenever there is state or federal funding for a project. The funding can be direct or indirect. In the case of CitySquare, of which Notre Dame is a part, millions of dollars of state funding helped build the new streets, sidewalks, and parking facilities, including Trumbull Street which borders and adds frontage, access, and probably value to the Notre Dame parcel. This is indirect financial assistance, which triggers the review process.
Once MEPA jurisdiction is established, review is required if the size or impact of a project exceeds any of the legally established thresholds. The demolition of Notre Dame requires MEPA and Massachusetts Historical Commission (MHC) review because Notre Dame is listed on the official inventory of the state’s historic assets. The filing of an Environmental Notification Form (ENF) and a period allowing for public comment are mandatory, and further review is at the discretion of the state Secretary of Energy and Environmental Affairs.
A full reading of the MEPA regulations makes all of this crystal clear, but opposing counsel in this case exploited ambiguous wording in one part of the regulations to suggest that the ENF is not mandatory, although anyone familiar with the entire 36 pages of MEPA regulations knows that this is a misinterpretation of the law. Unfortunately for us, Judge Reardon accepted that misinterpretation and Justice Singh failed to recognize his error.
Opposing counsel employed various other hair-splitting arguments to obfuscate what is really quite simple: Notre Dame is part of the state-funded CitySquare project, and MEPA and MHC review are mandatory before its demolition because it is on the state inventory of historic assets. None of the legalistic arguments to the contrary pass the laugh test. Think about it: in 2017 they argued that demolishing Notre Dame requires no MEPA review because it’s part of the CitySquare project, and therefore covered by a 2005 review done before it was even added to CitySquare. Now they argue it requires no review because it’s a private parcel, separate from CitySquare–although it’s been part of CitySquare since 2012 so its property taxes could also help pay for those new streets, and CitySquare II owns it! Taken separately, each of those arguments is problematic, but together, they are ludicrous.
The demolition of Notre Dame hasn’t been reviewed by the MEPA office or the MHC because the proponents have done everything they can to avoid it, including failing to disclose Notre Dame’s historic status or its planned demolition on critical documents. So our legal battle is about more than just saving Notre Dame. It’s also about preserving and protecting the integrity of the environmental review process, because if CitySquare II can avoid review in this way, then anyone else can do the same thing: collect their state funding first, bide their time, avoid the review process by failing to disclose critical impacts, and then do the historical or environmental damage at the end while claiming the law no longer applies to them. This is a textbook case of how to evade public review, and it cannot go unchallenged.
It’s important to remember that these court rulings denying an injunction do not resolve the underlying questions we have raised about the legality of demolishing Notre Dame without the required state review. And according to fellow plaintiff and career preservation planner Jeffrey Cronin, this is important far beyond Notre Dame, because if what has happened here is to be considered acceptable, then:
“In joint public-private developments with state funding, developers and municipalities may ignore filing environmental forms when applying to state agencies—and there would be no consequences.
“When applying to state agencies, developers and municipalities may fail to disclose demolition of a historic resource listed in the Commonwealth’s Inventory of Historic and Archaeological Assets—and there would be no consequences.
“Environmentally fragile and endangered sites are now imperiled because there is a clear path for developers and municipalities to circumvent MEPA review, even in overlay districts with public funding, by using private funds to destroy wetlands, archaeological sites, and historic buildings—and there would be no consequences.
“Consultants, developers, municipalities requesting advisory opinions from the MEPA office may omit or misrepresent important information—and there would be no consequences.”
The original civil action, filed on June 12, seeks to compel CitySquare II Development Co. (a subsidiary of Hanover Insurance) to complete the legally required impact review process before Notre Dame des Canadiens is demolished. The suit claims the firm never filed the required ENF notice with the MEPA office to initiate review as the law requires. The suit remains pending before Judge Reardon.
Ted Conna, plaintiff
co-leader, Save Notre Dame Alliance
Barbara Haller, plaintiff
co-leader, Save Notre Dame Alliance