Massachusetts Supreme Court Dismisses Landfill Appeal

by Ken O'Brien

The Massachusetts Supreme Court today issued its ruling in the case of BOARD OF HEALTH OF STURBRIDGE & others vs. BOARD OF HEALTH OF SOUTHBRIDGE & another. In its decision the court decided that the plaintiffs lacked standing to bring suit.

Writing for the majority, Justice Bostsford stated, " In July of 2008, the plaintiffs filed an appeal in the Superior Court from a decision of the defendant board of health of Southbridge (board) approving a "minor modification" to the site assignment for an existing landfill and related processing facility in that town under G. L. c. 111, § 150A (§ 150A). The plaintiffs brought their appeal pursuant to G. L. c. 30A, § 14. In response to a motion to dismiss, two judges in the Superior Court ruled that as parties before the board, the plaintiffs had standing to bring their complaint for judicial review to the Superior Court. However, the second judge (motion judge) concluded that the plaintiffs' challenges to the board's decision failed on the merits. Final judgment entered on December 16, 2009, affirming the board's decision.
   

We transferred the plaintiffs' appeal from the judgment to this court on our own motion to consider in particular the issue of the plaintiffs' standing to seek judicial review in the Superior Court of the board's decision. However, there is a threshold issue whether the appeal must be dismissed because the plaintiffs' notice of appeal was not timely filed in the Superior Court. For the reasons we shall discuss, we conclude that Mass. R. A. P. 4 (a), as amended, 430 Mass. 1603 (1999), did not authorize the allowance of the plaintiffs' motion to file their notice of appeal late, and consequently their appeal must be

dismissed.

Nevertheless, because the parties have fully presented and briefed both the standing issue and the plaintiffs' substantive challenges to the board's decision, we review both of these issues in this opinion. We conclude that on the record before the court, the plaintiffs lacked standing to seek judicial review of the board's decision in the Superior Court; and  the plaintiffs' substantive challenges to the decision lack merit."

The full text of the decision can be found on the Suffolk University web site.

In a phone conversation Attorney Kirstie Pecci said it is too early to say what actions the group might take at this point. She would not immediately rule out an appeal to the U.S. Circuit Court.

Shortly after 9:00 this evening, she released a statement through Residents for Alternative Trash Solutions (RATS). That statement read:

"As most of you know, in October I appeared before the Massachusetts Supreme Judicial Court to appeal the Board of Health's decision to expand the landfill site assignment.

Unfortunately, the Court found that the assumptions made by the BOH in 2008 were valid. Even more upsettingly, the Court found that my clients, 300+/- citizens of Southbridge, Sturbridge and Charlton did not have standing, or the right, to appeal the Board's decision.

I knew that the Southbridge Town Council illegally increased the Board of Health from three to five members to ensure that the site assignment would go through. They were more concerned with monetary gain than protecting our community's citizens.

I knew that certain members of the BOH voted to expand the site assignment despite the clear danger it presented to public health and the environment. They were more concerned with monetary gain than protecting our community's citizens.

I knew that the DEP ignored its own regulations and allowed Casella to proceed without a proper site assignment. They were more concerned with finding a place to put the waste than protecting our community's citizens.

I knew the Attorney General's Office was almost totally unresponsive to our pleas for assistance and allowed the Southbridge Charter to be ignored, even going so far as to file a brief arguing my clients did not have standing. They were more concerned with minimizing their caseload than protecting our community's citizens.

Now we know that the Supreme Judicial Court is not only unwilling to protect our health and safety, they are unwilling to even let us protect it ourselves.

While we have lost this battle, we are not defeated. A friend reminded me that Martin Luther King, Jr. said,

'The arc of the moral universe is long but it bends towards justice. It bends towards justice, but here is the thing: it does not bend on its own. It bends because each of us in our own ways put our hand on that arc and we bend it in the direction of justice....'

I look forward to continuing to work with all of you, each of us with hands bending the arc towards justice.

Kirstie L. Pecci, Esq."

For those who don't think that big money is at stake in this dispute, take a look at what happened to Casella's stock price after the issuance of today's decision:



Source: http://research.scottrade.com/qnr/Public/Stocks/Snapshot?symbol=cwst
Note: This link was only valid for this chart on 1/10/2012



See that big spike? That's a purchase of 200,000 shares. Consider the fact that over the last ten days Casella's stock traded an average of less than 74,000 shares for an entire day.

Perhaps that warrants some attention.

UPDATE