Monthly Archives: November 2015

Hancock Village 40B: parties try further appeal

Private parties to the original lawsuit over the proposed Chapter 40B housing project at Hancock Village have filed for an appeal at the Massachusetts Supreme Judicial Court (SJC). That lawsuit challenged the “project eligibility letter” that the Massachusetts Development Finance Agency issued, allowing the project to be considered by Brookline’s Zoning Board of Appeals.

Further appeal: At superior court for Norfolk County and recently at the Massachusetts Court of Appeals, the Town of Brookline and the allied homeowner group lost. The appeals court issued an abbreviated “rule 1:28″ decision, indicating it saw “no substantial question of law.” That could make the task of obtaining SJC review problematic.

The SJC has discretion over “further appellate review” and does not routinely accept an application unless there is disagreement at the Court of Appeals or what the SJC sees as significant unresolved issues. The Brookline parties might see the appeals court’s summary approach to its case as cause to claim that issues they have are significant and unresolved.

Unresolved issues: When explaining its ruling, the appeals court took a formalist view of a prior case, citing procedures but not substance of events that the Brookline parties had relied on. A key element of their case was an agreement on conditions for how Hancock Village would be developed. It was presented to the 1946 annual town meeting as part of the text of Article 23. After reviewing it, the town meeting voted to change land now called Hancock Village from single-family zoning to apartment zoning.

As a key argument, the Brookline parties had cited a recent appeals court ruling saying that conditions on a subdivision in the town of Orleans were permanent. According to the appeals court, because the Orleans conditions were part of a “discretionary grant of regulatory approval” they did not expire after 30 years, like restrictions in a deed. [Samuelson v. Planning Board of Orleans, 2014]

Surely Brookline’s 1946 rezoning to allow apartments in Hancock Village also was a “discretionary grant of regulatory approval,” and its conditions for development also would not expire in 30 years. According to the Court of Appeals in 2015, that was not enough. The exact procedures had not been followed in Brookline. To make conditions permanent, it was necessary that “land use restrictions” be “imposed” as in Orleans.

That’s actually what Brookline does today, with its specialized and overlay zoning districts of the past 20 years–like ones for Cleveland Circle, Commonwealth Avenue and Brookline Place. These are heavily customized types of zoning, designed around specific development projects. In 1946, however, such concepts were decades away. With its innovative 1946 plan for Hancock Village, the town did what looked reasonable at the time.

Instead of conditions “imposed” by a zoning district or a Zoning Board of Appeals decision, the 1946 town meeting reviewed conditions agreed to by the developer, who stated that the conditions would apply to “itself, its successors and assigns.” The agreement did not specify any particular process through which the conditions would be carried forward, leaving that to the developer.

Prospects: Under the U.S. Constitution, Congress–and by extension other legislatures–are not able to make “ex post facto laws,” applying after events happen. Courts are not so restricted, and that is what the Court of Appeals seems to be trying to do. No doubt, had the Town of Brookline known in 1946 that in 2015 the Court of Appeals would insist that it “impose” conditions, it would have found a way to do that–consistent with understandings that Hancock Village conditions were meant to be permanent.

Now the Brookline parties need to persuade the SJC that the Court of Appeals made a mistake, insisting on procedures that the appeals court prescribed decades after the facts of 1946, rather than considering the substance of what happened in Brookline then.

– Craig Bolon, Brookline, MA, November 13, 2015


Docket, Town of Brookline and others v. Massachusetts Development Finance Agency and another, case number FAR-23838, Massachusetts Supreme Judicial Court, filed October 16, 2015

Memorandum and order, Town of Brookline and others v. Massachusetts Development Finance Agency and others, case number 2014-P-1817, Massachusetts Court of Appeals, September 25, 2015

Martha Samuelson and another v. Planning Board of Orleans and others, 86 Mass. App. Ct. 901, Massachusetts Court of Appeals, July 2, 2014

Hancock Village 1946 Agreement, Article 23, Annual Town Meeting, March 19, 1946, from Brookline, MA, 1946 Annual Town Report, pp. 32-34

Rule 1:28, summary disposition, Massachusetts Court of Appeals, 2009

Stephanie J. Mandell, The history of rule 1:28, Massachusetts Bar Association, 2008

Hancock Village lawsuit: Brookline’s appeal dismissed, Brookline Beacon, September 29, 2015

Craig Bolon, Hancock Village: development pressures, Brookline Beacon, February 22, 2015

State transportation project: Carlton St. footbridge

On Wednesday evening, November 4, state transportation staff held a hearing on plans to renovate the Carlton St. footbridge, starting at 7 pm in the sixth-floor meeting room at Town Hall. The state is now managing a project that Brookline began in 1998.

Tracks and bridges: The footbridge was built in the 1890s over rail tracks–then part of the Boston & Albany Rail Road–running beside the Muddy River in Brookline, near the Longwood neighborhoods. From there, the river flows into the Back Bay Fens, one of the “public grounds” designed by Frederick Law Olmsted for the Boston park department. In an 1883 report, Olmsted resisted calling the facilities “parks.” He wrote that instead they were landscaped “drainage works.”

Site of the Carlton St. footbridge, 1887

MuddyRiverFensFootbridgeSite
Source: National Park Service

The arrow in the figure points to the site of the Carlton St. footbridge–near the intersection of Carlton St., coming south from Beacon St., with Colchester St. On the 1887 map from the Boston park department, the rail tracks are crossed by bridges at Longwood Ave. and at Park Dr., as the latter is now known. A footpath appears to connect a “flag stop” along the rail tracks with one of the circulation paths.

The tracks were originally built for the Boston & Worcester Railroad and Charles River Branch Railroad between Boston and Newton. From the 1850s through the 1870s, the railroad–through extensions, mergers and name changes–carried millions of tons of gravel from Newton and Needham into Boston to fill the Back Bay salt marsh, creating dry land for neighborhoods that continue to use the Back Bay name today.

In the 1870s, as the Back Bay landfill project wound down, the Boston & Albany (B&A) Rail Road took over the tracks running through Brookline and Allston into Boston, transporting both passengers and freight. There was a B&A terminal on Station St. in Brookline. Over tracks near the intersection of Carlton and Colchester Sts. the town built a pedestrian bridge–giving access from Longwood neighborhoods to the B&A “flag stop.”

Carlton St. footbridge, c. 1896

CarltonStreetBridge1896Mono
Source: Public Library of Brookline

Alexis H. French. Brookline’s first town engineer, oversaw construction of the bridge, built in the summer of 1894. It is a utilitarian steel “pony truss” design, with riveted beams and cross members. The main span is about 75 ft, and the overall length including staircases at each end is about 110 ft. Originally there were steel circles mounted along the sides, the only ornamentation.

Records now known show no involvement by Olmsted or his firm in building the Carlton St. footbridge. According to Prof. Charles Beveridge of American University, unpublished archives from 1892 showed it as a late addition to Riverway plans. For over 80 years, the bridge provided an alternate entrance to the Riverway segment that Olmsted and his firm designed–giving it historical context and significance.

Changes and decline: In 1958, the B&A notified the state that it was going to discontinue passenger service on the rail line. Massachusetts acquired interests in the route and contracted with Perini Corp. of Framingham to install electrical wiring and redirect the Boston end underground, to connect with trolley services at Kenmore Square. Perini completed the work in about a year.

Electrically powered service started in 1959 on what became the MTA Highland line–now known as the D branch of the MBTA Green Line. That introduced a new hazard for the Carlton St. footbridge: proximity to 600 volt, high current wires. Its 1894 state permit had called for a 15 ft height. The span was barely above the trolley wires, and the structure was in decline.

Indifferent maintenance, including use of road salt in the winter, led to weakening of stair treads, cross members and braces. By the 1970s, corrosion had become severe, and the bridge was a safety hazard. In the fall of 1975, both ends were blocked with chain-link fencing. Brookline looked into removing the structure but delayed doing anything because of costs and dangers from working around an active transit line.

By the 1990s, deterioration of the fenced-off, rusting structure had become so advanced that ordinary repairs had become impractical. The wood decking and smaller metal elements were stripped away, so they would not fall onto the trolley tracks. Only the original main steel columns and beams were sturdy enough to stay in place near the tracks.

Controversy and revival: Some neighbors hoped that the footbridge would be reopened. For example, the late Henry Kohn, a former Precinct 1 town meeting member, had used it almost every day. Dr. Kohn walked between his home on Monmouth Ct. and his office at Shields Warren Laboratory in the medical area. Others neighbors were wary of vagabonds known to collect in secluded parts of the Riverway, and they opposed reopening the bridge.

For several years, neighborhood opposition gained the upper hand, ousting many of the conservation-oriented Precinct 1 town meeting members who had supported efforts to reopen the footbridge. Starting in 2006, trends changed, and over the next few years the opposition contingent gave way to a new generation in Precinct 1 that supported efforts to reopen the footbridge.

Cathleen Cavell, a Precinct 1 town meeting member and Hugh Mattison, a Precinct 5 town meeting member, began organizing to restore the footbridge in the late 1980s and formed Friends of the Carlton St. Footbridge in the late 1990s. They attracted support from the Brookline GreenSpace Alliance, a membership group founded in 1987 to advocate and educate around open space issues. However, interest remained low and progress slow.

A lingering storm in October, 1996 helped the fortunes of the footbridge. About 8 to 12 inches of rain fell over three days. The Muddy River quickly flooded, and floodwaters flowed down Green Line tracks into the Kenmore Square station. From there, the flood spread into the trolley tunnel toward downtown Boston, under Boylston St. Damages to property and to the transit system ran to around $100 million, in current value. The Green Line repairs took about two years, with frequent interruptions and breakdowns.

In the aftermath, Boston and Brookline began closer cooperation on planning flood control for the Riverway and Fenway. A four-party plan developed, seeking assistance from the state and from the U.S. Army Corps of Engineers. During the Swift administration in 2002, Ellen Herzfelder, who was then the state secretary of environmental affairs, made restoring the Carlton St. footbridge a component of the Muddy River flood control project, pressuring Brookline to provide funds and coordinate efforts to renovate the footbridge.

After years of planning and disputes, the fall town meeting of 2009 finally provided project funds. Article 5 allocated $1.4 million for design and restoration, passed by a 194-24 roll-call vote. By that time, political changes in Precinct 1 had developed and settled. Every town meeting member from the precinct voted in favor of funds to restore the footbridge.

Project underway: At the November 4 hearing, Margaret Walsh and William Chi of the state highway department described the current $2.7 million project to renovate the Carlton St. footbridge. The largest amount of the cost is expected to be paid from federal Congestion Mitigation and Air Quality funds. If realized, Brookline and the state would each pay about $270,000 of the total. Brookline would be able to reclaim nearly $1 million from its 2009 appropriation, to use for other purposes.

Andre Martecchini of Kleinfelder SEA in Cambridge described the current design, for which Brookline paid the initial costs. It is intended to satisfy handicapped access requirements by attaching ramps at both ends of the span, just inside the staircases. Each ramp extends eastward toward Kenmore Sq. and loops back to the foot of its staircase. Original materials for the main steel beams are to be reused; most other parts will be new materials. Decking for the span is be Ipe hardwood, with an estimated 75-year service life.

Construction plans are to detach the staircases, lift the span and station it in a tent nearby. It will be renovated on-site, while ramps are built and staircases are rebuilt off-site. New foundations will raise the span about a foot and shift its location about a yard into the park, avoiding existing trees. When the structures are all ready, the span will be lifted back into place and the bridge reassembled, adding the new ramps and installing security screening along the span.

The current design is rated about 25 percent complete. It does not include any bridge or park lighting. The next part of the project is to produce working specifications and advertise for bids. The remaining project duration is estimated at around two years. Green Line service will be replaced with bus service for two weekends when the span is being lifted out and back, a significant part of project costs.

Comments and questions: Six town meeting members from Precinct 1 spoke in support of the project: Cathleen Cavell, James Franco, Neil Gordon, Sean Lynn-Jones, Robert Schram and Robert Sloane. None were opposed. Ms. Cavell, who started efforts that led to the project, said she had been “longing to see the bridge renovated and reopened.” Benjamin Franco, a former Precinct 1 resident and current member of the Board of Selectmen, said the project will “restore the Olmsted vision.”

Mr. Lynn-Jones, who chairs the Advisory Committee, asked about colors. Like the original, the renovated bridge will be mostly painted steel. Mr. Martecchini of Kleinfelder said the security screening will be black but “the rest will have some color,” not yet chosen. The original bridge was painted black, although what remains is heavily rusted.

Precinct 5 town meeting members Robert Daves, Betsy Shure Gross and Hugh Mattison and Precinct 6 town meeting member Thomas Vitolo spoke in favor of project plans. Mr. Mattison said they were the result of a “town-wide effort.” Arlene Mattison of Pond Ave, president of the Brookline GreenSpace Alliance, and Frances Shedd-Fisher of Walnut St., a former Precinct 5 town meeting member, echoed those sentiments.

Starting in 2006, Dr. Vitolo–a recent transplant from Precinct 1–became a figure in replacing a former Precinct 1 contingent that opposed reopening the bridge. He said he looked forward to bicycle crossings using the new ramps, expecting them to relieve congestion at the Longwood MBTA stop. New bicycle ramps on the Riverway, at the Route 9 intersection, will open at about the same time, he said, and should also help.

Others favoring the plans included Gilbert Hoy of Reservoir Rd., a former member of the Board of Selectmen who chaired Brookline’s project committee for the footbridge, Frances Gershwin of Glenoe Rd., who chairs the Oversight Committee for the Muddy River flood control project, Elton Elperin of Monmouth St., a member of the Preservation Commission, and John Dempsey of Brington Rd., a member of the Bicycle Advisory Committee.

Three former Precinct 1 town meeting members continued to oppose the project: Pamela Zelnick of Carlton St., a member of the Transportation Board, Frederick Lebow of Colchester St., chair of the Naming Committee, and Melvin Clouse of Monmouth St. Ms. Zelnick called the project “a total waste of taxpayer money.” Mr. Lebow recalled hearing “when that bridge was open, there was a higher crime rate.”

Anthony Raynes of Carlton St. echoed the opposition, saying the new “design is excellent” but claiming that the “bridge was closed because of crime.” With more bicycle traffic encouraged by a renovated bridge with ramps, Dr. Raynes said Carlton St. will become “total mayhem…the accident rate will be terrible.” Dr. Clouse said very few Brookline pedestrians would likely use the bridge, calling it a “bridge to nowhere.”

Opponents of renovating the Carlton St. footbridge, by now heavily outnumbered by supporters of the bridge, sounded unlikely to derail the project. Mr. Elperin of the Preservation Commission, an architect, said he “never expected the project would take this long or cost this much.” He commended the designers for “great care taken to make the ramps as light as possible” and observed that over time a steel bridge would be seen as “more valuable by being a rare feature of an Olmsted park.”

– Beacon staff, Brookline, MA, November 9, 2015

– Updated November 11, 2015, with letter from Prof. Charles Beveridge


Design public hearing for project 606316, proposal B-27-016, Highway Division, Massachusetts Department of Transportation, November 4, 2015

Transportation project funding, Massachusetts Department of Transportation, 2015

Priority evaluations, highway projects FY2016, Massachusetts Department of Transportaton, 2015

FY2013 Capital improvement program, Town of Brookline, MA, 2012, See $1,254,000 bond fund for 10 years for Carlton St. footbridge.

Minutes, Brookline Preservation Commission, April 12, 2011

Roll-call vote, Article 5, November 17, 2009, town meeting, Town of Brookline, MA

Warrant report for November 17, 2009, town meeting, Town of Brookline, MA

Hugh Mattison, The Muddy River restoration project, Brookline GreenSpace Alliance, 2009

William A. Newman and Wilfred F. Holton, Back Bay: The Story of America’s Greatest Nineteenth-Century Landfill Project, Northeastern University Press, 2006

David O. Mendelsohn, Muddy River project facilitation, in Robert L. France, ed., Facilitating Watershed Management, Rowman & Littlefield, 2005, pp. 55-58

Bridge to nowhere, Carlton Street Footbridge, 2003

Letter to Gilbert Hoy, Board of Selectmen, from Charles E. Beveridge, American University, re Carlton St. footbridge plans, September 25, 2001 (obtained from Cathleen Cavell)

Report of the town engineer, in Annual Report of Town Officers, Town of Brookline, MA, 1906, p. 157

Bridge over Boston & Albany Railroad at Carlton Street in Brookline, May 4, 1894, in Annual Report, Massachusetts Board of Railway Commissioners, 1895, p. 193

Report of the landscape architect, 1883, and Map for the Back Bay Fens, 1887, in Papers of Frederick Law Olmsted, Vol. 8: The Early Boston Years, reprinted by National Association for Olmsted Parks, 2010

Conservation Commission: will Muddy River flooding be controlled?, Brookline Beacon, July 16, 2014

Craig Bolon, Hazards of rail transport, Brookline Beacon, May 1, 2014

New England gas pipelines: attorney general weighs in

In New England, there are now six natural gas pipeline projects active, in review or announced. They would increase total pipeline capacity into the region by about 75 percent. There is no foreseeable market in the region for that amount of new gas. Instead, pipeline companies appear to be speculating on exporting U.S. natural gas through New England into international markets. However, they want New England utility customers to pay for their pipelines, and they have been working to sign up utility companies as business partners.

Northern route: The biggest project remains Northeast Direct, proposed by the Tennessee Gas division of Kinder Morgan, headquartered in Houston, TX. It is intended to connect between a major pipeline hub in Schoharie County, NY, just south of the Adirondacks, and a major hub in Dracut, MA. Most of it was originally routed across northern Massachusetts, carrying hydrofractured shale gas from eastern Pennsylvania into east central New England, with a design capacity of 2.2 billion cubic feet per day (Bcf/d).

The original Tennessee Gas proposal would have increased total gas pipeline capacity into New England by more than half, passing through conservation lands and close to many homes. It has been in state reviews and is in “pre-filing” status at the Federal Energy Regulatory Commission (FERC). It sparked intense protests in Massachusetts, with hundreds of residents turning out at each of several public hearings.

Tennessee Gas recently scaled back capacity to 1.3 Bcf/d, after rerouting much of the line through southern New Hampshire. The “pre-filing” comment period ended October 16. That day, Maura Healey–elected last year as Massachusetts attorney general–sent “scoping comments” to FERC about the Tennessee Gas proposal. The comments recommended measures to organize federal reviews:

• Rather than analyze isolated projects, FERC should prepare an Environmental Impact Statement (EIS) that forecasts regional needs for new natural gas pipeline capacity in New England and considers the combined impacts of all six current pipeline projects.

• The EIS should review potential impacts on both the region’s environment and the global environment. In particular, it should consider protected conservation lands, global warming and human health and safety.

Arguments: The attorney general clearly saw that piecemeal reviews were likely to lead to excess pipeline capacity, costs and environmental risks. However, in order to prevail, the attorney general needs to prepare for federal lawsuits, challenging a hidebound federal agency, and will need to break a logjam of legal barriers.

The attorney general cited Kleppe v. Sierra Club. [427 U.S. 390, 1976] In that case, early in the development of Powder River Basin coal in the Mountain West, the Supreme Court found that a regional review of proposals for coal mines was not required under federal law, but its opinion said regional reviews would be necessary in other circumstances.

The 1976 opinion held, “…when several proposals…that will have cumulative or synergistic environmental impact upon a region are pending concurrently before an agency, their environmental consequences must be considered together.” The Kleppe case has rarely been useful. Its range of conditions is so narrow that few practical circumstances qualify. As typically happens, New England gas pipeline projects that the attorney general cited are not now “pending concurrently before an agency.” Instead, they are at different stages:

Spectra, Algonquin Incremental Markets 0.342 Bcf/d under construction
Tennessee Gas, Connecticut Expansion 0.072 Bcf/d final FERC review
Tennessee Gas, Northeast Energy Direct 1.3 Bcf/d FERC pre-filing
Spectra, Atlantic Bridge 0.13 Bcf/d FERC pre-filing
Spectra, Access Northeast to 1.0 Bcf/d open season ended
Portland Natural Gas, Continent to Coast to 0.13 Bcf/d open season ended

As tallied by the attorney general, the projects total up to 2.974 billion cubic feet per day (Bcf/d) of new gas pipeline capacity, compared with 3.951 Bcf/d of current gas pipeline capacity.

The attorney general also cited some marginal cases and statutes: Massachusetts v. Environmental Protection Agency [549 U.S. 497], decided by the U.S. Supreme Court in 2007, and the Massachusetts Endangered Species Act and Global Warming Solutions Act. [St. 1990, C. 408, and St. 2008, C. 298] The Supreme Court case required new regulations from the U.S. Environmental Protection Agency for greenhouse gas emissions but said nothing about FERC projects. State laws might apply to state reviews of pipeline projects, but they do not govern FERC.

Regulations: Potentially stronger arguments from the attorney general are based on federal regulations implementing the National Environmental Policy Act of 1970. Under rules for scope of review [40 CFR 1508.25], federal agencies must consider “cumulative actions, which when viewed with other proposed actions have cumulatively significant impacts,” as well as “similar actions, which when viewed with other reasonably foreseeable or proposed agency actions, have similarities that provide a basis for evaluating their environmental consequences.”

Gas pipeline projects in New England certainly “have similarities.” They are all “reasonably foreseeable,” and they look likely to have “cumulatively significant impacts.” Beyond those strong suits, environmental objections from the attorney general might be overstated. They cite provisions of “guidance” documents, construing them as “requirements.” Section IV.B, third paragraph, asks for compliance with a draft document, “2014 CEQ Climate Impact Guidance,” which is also mentioned in Section IV.D of the comments.

Need versus greed: The attorney general’s comments said FERC is brushing off analyzing needs for more gas pipeline capacity as part of an environmental review. “FERC has indicated that this inquiry will not be part of the EIS.” [Detailed comments, first paragraph] Moving proactively, the attorney general arranged a professional review of those issues, described as follows:

“The Attorney General’s Office will soon release a study it commissioned…that examines the extent of New England’s need for additional energy supplies to ensure electric system reliability through the year 2030 and analyzes alternative solutions to meeting any such need, including costs to ratepayers and effects on greenhouse gas emissions.” [Introduction and summary of comments, sixth paragraph]

When first announced in early July, the study by Analysis Group of Boston was to be “completed by October, 2015.” Since then, its release has been postponed at least twice and was most recently promised for some time in November. It is to consider, in particular, the ocean import terminals for liquefied natural gas (LNG) now serving New England, specifically: “whether [needed] gas can by supplied by LNG or additional pipeline capacity is needed.”

New England is served by four ocean import terminals for LNG, with total capacity about 3.2 Bcf/d. However, because of high prices in overseas markets, during 2011 through 2014 only the Distrigas terminal in Everett, adjacent to Boston Harbor, received deliveries. The operator, GDF Suez, had long-term contracts at favorable prices. This past winter, price spikes in New England gas and electricity appear to have been trimmed by reactivation of the Northeast Gateway terminal off Gloucester.

Nearly doubling gas pipeline capacity into New England, as originally proposed, never made financial sense, if it were intended to meet needs of New England. The motive behind the giant proposals from the pipeline companies always looked like speculation on shipping hydrofractured shale gas coming from the Appalachians, particularly Pennsylvania, into Canada.

From Canada, the pipeline companies would export gas as LNG, coupling U.S. natural gas into international markets and expecting to raise prices. There are now permits for two Canadian terminals to export a total of about 1.5 BCf/d. From the viewpoints of the pipeline companies, New England has become a shipping route.

– Craig Bolon, Brookline, MA, November 1, 2015


Attorney General Healey calls on FERC to weigh gas needs and pending projects as part of review of Kinder Morgan pipeline, Office of the Massachusetts Attorney General, October 19, 2015

Scoping comments for the Northeast Energy Direct project, Office of the Massachusetts Attorney General, October 16, 2015 (edited for internal consistency)

Office to lead regional gas capacity study, Office of the Massachusetts Attorney General, July 6, 2015

Tux Turkel, Deliveries of liquefied natural gas, Portland (ME) Press Herald, February 1, 2015

Mary Serreze, Gas pipeline foes form three-state coalition, Springfield (MA) Republican, January 30, 2015

Joe Mahoney, Pipeline plan crosses archaeological site, sparks feud with FERC, Oneonta (NY) Daily Star, September 21, 2015

Alvin L. Alm, National Environmental Policy Act: past, present and future, U.S. Environmental Protection Agency, 1988

Scope of environmental review, Federal Regulations 40 CFR 1508.25, Cornell University Law School, 2015

Craig Bolon, New England gas pipelines: need versus greed, Brookline Beacon, August 29, 2015