Opinion
18-P-1140
11-15-2019
ORION REALTY COMPANY, INC. v. CITY OF ATTLEBORO & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Orion Realty Company, Inc. (Orion), appeals from a Superior Court judgment dismissing Orion's complaint. This case concerns an Attleboro-owned wastewater treatment facility which straddles both Attleboro and Seekonk. The parcel of land at issue is the newest phase of the facility, that is, phase III, which is located in Seekonk and directly abuts Orion's property. Orion claims that phase III is governed by the siting requirements of G. L. c. 111, § 150A ; that these statutory requirements have been ignored; and therefore that the judge erred in dismissing its complaint. Because we conclude that phase III was not subject to these siting requirements for two separate reasons, we affirm.
Orion does not appeal from the order denying a preliminary injunction.
This section is entitled the Solid Waste Management Act (SWMA). In relevant part, the SWMA mandates, "No place in any city or town shall be maintained or operated by any person ... as a site for a facility, or as an expansion of an existing facility, unless, after a public hearing, such place has been assigned by the board of health of such city or town in accordance with the provisions of this section." G. L. c. 111, § 150A.
1. Standard of review. We review the allowance of a motion to dismiss under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), de novo, examining the same pleadings as the motion judge. See Dartmouth v. Greater New Bedford Regional Vocational Tech. High Sch. Dist., 461 Mass. 366, 373 (2012). All allegations in Orion's complaint are accepted as true, and we draw any reasonable inferences in Orion's favor. See Burbank Apartments Tenant Ass'n v. Kargman, 474 Mass. 107, 116 (2016). Importantly, a rule 12 (b) (6) motion allows "prompt resolution of a case where the allegations in the complaint clearly demonstrate that the plaintiff's claim is legally insufficient." The Harvard Crimson, Inc. v. President & Fellows of Harvard College, 445 Mass. 745, 748 (2006).
2. The State regulations. "We will not substitute our judgment for that of an administrative agency if its interpretation of a statute is reasonable." Alves's Case, 451 Mass. 171, 177 (2008). Here, the Department of Environmental Protection's (department's) SWMA regulations exclude phase III from the siting requirements set forth in G. L. c. 111, § 150A. That is, 310 Code Mass. Regs. § 16.01(4)(b) (2012) expressly exempts "Waste Water Treatment Residuals Facilities," which are facilities that "manage waste-water treatment plant residuals subject to the siting process pursuant to G. L. c. 83, § 6 [ ] and regulated pursuant to 314 CMR 12.00." Orion claims that phase III is not subject to G. L. c. 83, § 6, because the parcel is not located within Attleboro's borders, and thus it is not encompassed by the statutory exemption. We disagree.
General Laws c. 83, § 6, in pertinent part, states that "[a] town, with the approval of the department of environmental protection, after a public hearing by said department of all parties interested, of which notice shall be given by publication in one or more newspapers, may purchase land within its limits ... for the treatment, purification and disposal of sewage" (emphasis added).
Orion's claim fails to take account of the pertinent legislative history in relation to siting assignments, which illuminates the reasonableness of the department's regulations. Historically, cities and towns that wished to acquire property outside their borders had to do so by obtaining special enabling legislation. See, e.g., 1938 Report of the Att'y Gen. 100, 101. Here, Attleboro had been granted permission via a 1909 Act, discussed infra. This is why phase III does not fall under G. L. c. 83, § 6, and is an example of why the department treats § 16.01(4)(b) as a categorical exemption. In contrast to Orion's position, there are no actual "gaps" in the governing law. In fact, phase III is regulated under separate schemes. The department's regulations merely ensure that the site is not unnecessarily regulated twofold. The department's interpretation of the regulations is not unreasonable, see Alves's Case, 451 Mass. at 173, and, accordingly, the judge did not err in finding phase III exempt from the siting requirements of G. L. c. 111, § 150A.
Phase III is subject to G. L. c. 83, §§ 6, 7 ; the State Clean Waters Act, G. L. c. 21, §§ 26 -53 ; and the Federal Clean Water Act, 33 U.S.C. §§ 1251 et seq. (2012).
Orion also claims that the department relied on erroneous facts in approving phase III, namely that the parcel is situated at least 500 feet from Orion's private wells when it is actually closer, and so the department did not consider the risk of potential harm to the water supply. See 310 Code Mass. Regs. § 19.038(2)(c)(3)(b) (2014). However, the department conducted an investigation at the site and concluded that phase III posed no significant risk of harm. Furthermore, given our conclusions on the applicability of the department regulations, no viable claim remains. See The Harvard Crimson, Inc., 445 Mass. at 748.
3. The Act of 1909. Even if we assume that the SWMA does apply, the combination of the 1909 Act (to authorize a sewage system in Attleboro) and the grandfathering provision of the SWMA supports the conclusion that phase III is still not subject to the SWMA's siting provisions. In 1909, the Legislature authorized Attleboro to construct a sewage system in Seekonk. St. 1909, c. 157, §§ 1, 3. It is undisputed by the parties that the area designated for sewage disposal in Seekonk by the 1909 Act is the same area described as phase I and phase III. When SWMA was enacted, places "in use as, or publicly held or licensed for use as, a dumping ground for garbage, rubbish or other refuse ... on the effective date of this act" were deemed to have been assigned under G. L. c. 111, § 150A. St. 1955, c. 310, § 2. Thus, the SWMA essentially grandfathered the site at issue in this case, including its phase III portion. The motion to dismiss was properly granted for this reason as well.
At oral argument, the department "concede[d] ... this is the land covered by the 1909 Act."
We note that Orion did not claim that the 1909 Act procedures were not followed.
Finally, contrary to Orion's claim, G. L. c. 111, § 143, is not applicable to this case. Orion's complaint failed to state a claim upon which relief can be granted, and it was properly dismissed. See The Harvard Crimson, Inc., 445 Mass. at 748.
General Laws c. 111, § 143, cannot be used by municipalities to conflict with State siting decisions. See Greater Lawrence Sanitary Dist. v. North Andover, 439 Mass. 16, 21-22 (2003). The 1909 Act precludes Seekonk from having authority under this provision to assign phase III. Id. at 25 n.10.
Judgment affirmed.