FBH Comment Letter on Lantana Land Swap FEIR

April 8, 2009

Secretary of Energy and Environmental Affairs
Attention: MEPA Office
Anne Canaday, EEA No. 14115
100 Cambridge Street - 9th floor
Boston, Massachusetts 02114

Re: Lantana Article 97 Land Swap-Randolph, MA
EEA No. 14115

Dear Secretary Bowles:

Friends of the Blue Hills (FBH) respectfully submits its opposition to Lantana’s (the Proponent) Final Environmental Impact Report, filed with the MEPA office under cover of letter dated March 2, 2009.

The Secretary’s DEIR Certificate dated June 27, 2008 required the Proponent to:

a) “[T]horoughly address the comments submitted by” the Department of Conservation and Recreation (DCR), the Natural Heritage and Endangered Species Program (NHESP) and the Massachusetts Historical Commission (MHC);

b) In consultation with DCR, DCAM and the Inspector General’s office, “present updated appraisals for the Hart Parcel and the DCR Parcel”;

c) Revise the draft Section 61 Findings “based on the results of the updated appraisals and the outcome of any additional consultations with DCR and DCAMM,” which revisions “should include a clear commitment to implement mitigation measures, estimate the individual costs of the proposed mitigation, identify the responsible parties, and provide a schedule for implementation.”

FBH will show that the Proponent’s FEIR fails to meet the requirements of the Secretary’s Certificate and fails to adequately and properly comply with MEPA and its implementing regulations. The Secretary must, therefore, determine that the FEIR is inadequate, pursuant to 301 CMR 11.08. FBH also urges the Secretary to find that the land transfer lacks a public purpose; that the Proponent has failed to demonstrate that the land transfer will improve pedestrian safety and that available alternatives have not been adequately considered.

Summary

The grounds for FBH’s objections to the FEIR are:

1. The FEIR is incomplete and fails to comply with the Secretary’s DEIR certificate in that it does not contain the updated appraisals as required by the Secretary. (See Exhibit A, FBH letter dated March 13, 2009.) This omission is prejudicial to FBH’s right to have an opportunity to fully and fairly review the Proponent’s submission pursuant to CMR 301.11. Without the appraisals submitted by Proponent, FBH and others are left to guess at their methodology and contents, in violation of MGL C. 30, section 61, et seq and CMR Part 301.

2. If the Secretary deems the omission not to be improper, the Proponent’s updated appraisals still fail to properly value the DCR lot at fair market value(FMV), in violation of the Article 97 Land Disposition Policy. The purported appraised value of $350,000.00 is far below the estimated FMV of $1,200,000.00 previously submitted by FBH in its comments on Proponent’s DEIR. (See Exhibit B to FBH letter dated June 12, 2008, FEIR Vol. 2.) As a result, the Hart parcels and “in kind” payments are wholly inadequate to compensate the Commonwealth for the DCR parcel.

3. The Proponent has failed to show compliance with EOEEA’s Article 97 Land Disposition policy.

4. The Proponent’s revised Section 61 Findings fail to adequately address the mitigation issues identified by DCR, DCAM, NHSEP and MHC, as required by the Secretary’s DEIR certificate.

A. DCR’s Comments: By letter dated June 20, 2008 (FEIR Vol 2, Appendix B), DCR identified several “substantive issues” that indicated that the land “disposition would be mitigated properly in a manner consistent with” EOEEA’s Article 97 Land Disposition Policy. The issues included use of an outdated appraisal, the absence of an appropriate public purpose, destruction of (or threat to) a unique or significant habitat or rare, unusual terrain, non-development of the existing parking lot, and Phase I Site Assessment. The Proponent’s revised Section 61 Findings either fail to adequately address these issues or are completely unresponsive. (For example, Proponent appears to confuse statutory limitations on the proposed parking lot with representations it made precluding future development of the existing parking lot. (FEIR Vol 1, p. 20.)

B. DCAM’s Comments: Updated appraisals were requested by DCAM. However, as these appraisals have not been included in the FEIR, Proponent may not assert that it has complied with DCAM’s comments. There is also no indication that the appraisals account for the value of the timber (or other resources) to be removed from the DCR parcel.

C. NHESP’s Comments: By letter dated June 18, 2008 (Appendix B), NHESP identified numerous mitigation issues, including failure to address traffic-safety alternatives, the existence of a vernal pool which is a spotted salamander habitat, and the net loss of overall “resource value” for the Reservation due to the unequal attributes of the parcels to be swapped. The Proponent has failed to adequately address any of these issues.

D. MHC’s Comments: By letter dated June 12, 2008 (Appendix B), the MHC notes that the Blue Hills Reservation is “part of the Blue Hills Multiple Resource Area which is listed in the State and National Registers of Historic Places.” MHC notes that the Proponent failed to describe many design elements in its DEIR, such as lighting (the absence of which “is curious as the project is proposed to increase public safety in this area”) and signage. The Proponent cavalierly brushes MHC’s comments aside by stating that it will at some future point address these issues.

For these reasons, FBH submits that the FEIR is inadequate pursuant to MGL C. 30, Section 61 and the regulations enacted in support of same.

I. THE FEIR IS INADEQUATE AS IT FAILS TO CONTAIN
THE APPRAISALS ORDERED BY THE SECRETARY

By letter dated March 13, 2009 (Exhibit A), FBH requested that the Secretary require the Proponent to supplement its FEIR by including the updated appraisals of the Hart and DCR parcels, as well as the older appraisals, for comparison purposes. The failure to include these documents in the FEIR unfairly prejudices FBH from analyzing the appraisal in any meaningful way. This omission also violates the conditions of the Secretary’s Certificate on the DEIR. Therefore, the Secretary must “determine that the final EIR is inadequate and require the Proponent to file a supplemental final EIR in accordance with 301 CMR 11.07,” as required by 301 CMR 11.08(8)(c)(2).

The “black box” appraisal figure of $350,000 is submitted with no indication of the appraisal standards used. FBH should not be required to speculate at the contents of the appraisals, and respectfully submits that the Proponent be required to submit a supplemental FEIR containing these appraisals.

II. THE PURPORTED APPRAISED VALUE OF THE DCR PARCEL
IS UNACCEPTABLY LOW

A.If the Secretary Deems the Omission of the Appraisals not to be Improper, the Proponent’s Updated Appraisals Still Fail to Properly Value the DCR Lot at Fair Market Value(FMV), in Violation of the Article 97 Land Disposition Policy

The purported appraised value of $350,000.00 is far below the estimated FMV of $1,200,000.00 previously submitted by FBH in its comments on the Proponent’s DEIR. In fact, as noted by DCR in its DEIR comment letter, the older 2005 appraisal gave a value of only $2.08 per square foot, which is approximately one-tenth the value of a similar DCR disposition. Even at the updated figure of $350,000.00, this is still only $2.51/sq ft, a value radically lower than DCR’s expected valuation of $20/sq ft.

Second, The updated appraisal of the DCR parcel also fails to account for the enhanced value the acquisition will create for the Proponent’s contiguous land holdings in Randolph. The true value of the land swap is the value of the commercial development potential of the aggregate parcel. The 2006 re-zoning of this area from single-family residential a new Blue Hill River Highway District (see Exhibit A to FBR’s comment letter, FEIR Vol. 2) now allows banks, offices, hotels and appliance and furniture stores. The Proponent, by acquiring the DCR parcel, will be in a position to develop or sell (at greatly increased price) the existing event parking lot.

Third, there is no indication in the FEIR of the value of the timber to be harvested from the DCR parcel. It would be unconscionable to give the Proponent a windfall gain represented by the value of the timber, whether sold outright or used to offset development (clearing and grading) costs. The same argument applies to soil or other fill materials removed from the parcel.

The Proponent must supplement its FEIR to account for these items.

B. The Hart Parcels and “In Kind” Payments are Wholly Inadequate to Compensate the Commonwealth for the DCR Parcel

Alleging a “net positive gain” for the land swap is erroneous. The parcels are not equivalent—the Hart parcels are inaccessible by any existing or planned trails and are covered with dense undergrowth. One parcel abuts a major interstate highway interchange (I-93/Rte 24) and the other consists of low-lying wetlands. Neither is remotely equivalent to the upland forest of the DCR parcel, which already contains a decades-old marked trail (the Smith Trail) and numerous physical attributes (old stone walls, large boulders) not identified on the Hart parcels. (See NHESP and MHC comment letters.)

The “in kind” contributions are a transparent and cynical way to allow the Proponent to acquire the DCR parcel without having to give the Commonwealth any substantial monetary compensation. Although the list of “in-kind” equipment is contained on DCR letterhead in a memo from the South Region Director to the Assistant General Counsel, there is no documentation supporting the costs of the items or who (DCR or the Proponent) will actually be purchasing the equipment.

FBH submits that if the Proponent is permitted to identify and locate the equipment and purchase same, then the FEIR must be supplemented by including documentation supporting the prices allocated to each item, as well as the identity of each vendor.

III. THE PROPONENT HAS FAILED TO SHOW COMPLIANCE
WITH THE ARTICLE 97 LAND DISPOSITION POLICY

The “exceptional circumstances” criteria for an Article 97 transfer are set forth in the FEIR (pp. 5 – 6). The Proponent has failed to show that the proposed transfer meets any of the six conditions to justify this transfer.

A. All other options have not been explored and numerous feasible and substantially equivalent alternatives exist

The Proponent asserts that the purpose for the land transfer is the safety of its patrons. FBH and others haveflatly refuted this transparently cynical assertion in comments on the DEIR. (FBH Comment Letter, FEIR Vol. 2, pp 28 – 38.) FBH notes that, in addition to the Proponent’s flawed analysis discussed in FBH’s DEIR comment letter, the Proponent itself has acknowledged that “the crossing is not considered an extreme hazard.” (DEIR Executive Summary, p. 4.) If the Proponent admitted the obvious—that this transfer is simply for its own enrichment at the public’s expense—then it would be accurate in saying that no alternatives exist. But by claiming “safety of its patrons” as justification, its analysis fails utterly. (FBH and others have previously identified numerous less drastic alternatives, including improved lighting, police for traffic control, traffic lights, pedestrian bridge, relocation of crosswalks and fencing.)

Demonstrating the inanity of the “pedestrian safety” argument is the likelihood of development on the existing event parking lot. When this happens, persons visiting the developed lot will travel on foot from the DCR lot across Scanlon Drive, thereby increasing the alleged hazard to pedestrians. In other words, constructing a parking lot on the DCR parcel will have precisely the opposite effect allegedly intended by the Proponent. This is either an example of the law of unintended consequences or (more likely) the natural result of an argument based on false assumptions.

The Proponent explicitly and implicitly admits to the fallacy of the “pedestrian safety” argument. In its response to the comment letter of the Massachusetts Stewardship Initiative, the Proponent states: “Accident research was performed for the existing pedestrian crossing on Scanlon Drive at the Project site. There have been no reported accidents at this location in the past three years for which data was reviewed.” (Emphasis added; FEIR Vol. 1, p. 25.) The Proponent then goes on to state that pedestrian traffic at the site is insufficient to justify pedestrian crossing signals. The Proponents “pedestrian safety” argument can thus be summarized: No accidents and few pedestrians means that there is a compelling reason to construct a private parking lot on public land. The illogic of the Proponent’s position is staggering.

B. The disposition and proposed use destroys or threatens a unique or significant resource

As noted by FBH and NHESP in their comment letters (FEIR Vol. 2), the “DCR Parcel is mapped as Priority and Estimated Habitat for the Marbled Salamander, a state-listed Threatened Species . . . [.]” (NHESP letter.) The proposed parking lot would also eradicate a significant portion of the Smith Trail, which has existed at the site for decades. By definition, the DCR parcel is a unique and significant resource. No amount of ‘mitigation’ can change this.


C. Real estate of equal or greater fair market value in use, and significantly greater resource value, will not be granted to the disposing agency

It has been shown above that the so-called appraisals severely undervalue the DCR parcel, undercutting any argument that the Commonwealth will receive fair market value for the transfer.

In addition,the Hart parcels have asignificantly lower resource value than the DCR parcel. NHESP notes that the Hart parcels do not provide habitat for the Marbled Salamander. The Hart parcels are relatively inaccessible and they consist “mainly of dense saplings with little under-story, making it difficult to walk through, and there is considerable noise from the adjacent highway.” (NHESP letter, Vol. 2.) As NHESP succinctly points out:

Considering aesthetic, recreational and habitat values, there is a real concern that the proposed land swap has the potential to impact significant resources and result in anet loss of overall “resource value” for the Reservation. (Emphasis added.)

D. The minimum acreage necessary for the proposed use is not proposed for disposition

Because the proposed use (parking lot) is totally unrelated to the purported purpose of protecting the safety of the Proponent’s patrons, the minimum acreage to be transferred should be “zero.”

E. The disposition does not serve an Article 97 purpose or another public purpose

FBH has already shown that the neither an Article 97 purpose or other public purpose exist for the transfer. (Comment letter, Vol. 2.) The Proponent inaccurately states in the FEIR that the transfer will serve an Article 97 purpose in that the Commonwealth will receive 5.2 acres in exchange for the 3.2 acre DCR parcel. This assertion assumes a false equivalence of the parcels in question. This is borne out by the fact that the Hart parcels appraised for less than one-tenth of the value of the DCR parcel. (If historical DCR values of $20/sq ft were used, the ratio would be one-hundredth of the DCR parcel’s value.) Also, the resource value of the Hart parcels are such that the Reservation will suffer a net loss as result of the exchange, as noted by NHESP.

There is no public purpose for this transfer, which will solely benefit the Proponent. The DCR parcel will contain a private parking lot, which will be used by the Proponent and its patrons, mainly to the exclusion of the general public. FBH noted in its DEIR comment letter that this type of transfer has been condemned by the Supreme Judicial Court, whose words bear repeating:

“[W]here there may be benefits to private parties, those benefits must not be primarily but merely incidental to the public purpose. ‘The paramount test should be whether the expenditure confers a direct public benefit of a reasonably general character, that is to say, to a significant part of the public, as distinguished from a remote and theoretical benefit’ and whether the ‘aspects of private advantage . . . are reasonably incidental to carrying out a public purpose in a way which is in the discretion of the Legislature to choose’.” Opinion of Justices to the Senate, 383 Mass. 895, 905 (1981).

The benefits of this transfer will be primarily private, and only incidental to any public purpose, thereby standing the SJC’s proscription on its head.

The Proponent asserts that it will reserve ten parking spaces for Blue Hills users. This ignores the fact that there is already parking available to Blue Hills users along High Street, across from the Smith Trail trailhead. The FEIR also fails to show how or whether it will enforce the reserved parking rules. A dedicated parking area with a separate entrance for Blue Hills users would be the most effective solution.

At a minimum, the FEIR should be supplemented by including a plan for enforcing restricted parking or, alternatively, describing a dedicated parking area for Blue Hills users.


F. The disposition may be contrary to the express wishes of the express wishes of the person(s) who donated or sold the parcel to the Commonwealth

Without providing documentation or other evidence to support the assertion, the Proponent claims that there are “no known “express wishes” of the owner from whom the Commonwealth purchased the subject land.”

It is respectfully submitted that the burden is on the Proponent to at least conduct a title search and include in the FEIR any documents that would support or refute this bald assertion.


IV. THE REVISED DRAFT SECTION 61 FINDINGS
FAIL TO MEANINGFULLY ADDRESS THE REQUIREMENTS
OF THE SECRETARY’S DEIR CERTIFICATE

The Secretary’s DEIR Certificate requires that the Proponent revise the draft Section 61 Findings “based on the results of the updated appraisals and the outcome of any additional consultations with DCR and DCAMM,” which revisions “should include a clear commitment to implement mitigation measures, estimate the individual costs of the proposed mitigation, identify the responsible parties, and provide a schedule for implementation.” The Proponent was specifically required to address the mitigation issues identified by DCR, DCAM, NHSEP and MHC in their respective comments letters. Because Proponent has utterly failed to address the mitigation issues in a meaningful, substantive manner, the FEIR must be found to be inadequate. In the alternative, the Proponent must prepare a supplemental FEIR that adequately addresses the agency mitigation issues.

A. The Proponent’s Section 61 Findings Fail to Adequately Address Mitigation Issues Raised by DCR

In its comment letter on the DEIR, DCR identified numerous mitigation issues to be addressed by the Proponent: use of an outdated appraisal (discussed above) the absence of an appropriate public purpose, destruction of (or threat to) a unique or significant habitat or rare, unusual terrain, non-development of the existing parking lot, and Phase I Site Assessment of the Blue Hill River parcel. The Proponent’s revised Section 61 Findings either fail to adequately address these issues or are completely unresponsive. For example, Proponent appears to confuse statutory limitations on the proposed parking lot with representations it made precluding future development of the existing parking lot. (FEIR Vol. 1, p. 20.)

FBH requests that the Proponent file a supplemental FEIR, containing a draft deed restriction on the existing parking lot’s development and that a Phase I Site Assessment be performed for the Blue Hill River parcel. Additionally, FBH requests that the Proponent detail the consultations it had with DCR, as required by the Secretary’s Certificate.

B. The Proponent’s Section 61 Findings Fail to Adequately Address Mitigation Issues Raised by DCAM

The main issue raised by DCAM was updated appraisals. As discussed above, the Proponent failed to include these in the FEIR and a supplemental FEIR is requested.

C. The Proponent’s Section 61 Findings Fail to Adequately Address Mitigation Issues Raised by NHSEP

NHESP’s comments are extensive and are summarized as follows:

1. Viable alternatives were not adequately addressed;

2. The DCR parcel is more likely to be a Marbled Salamander habitat than is the Hart parcel;

3. The DCR parcel is located adjacent to a vernal pool;

4. The Hart parcels are difficult to access and enter and the exchange of the DCR parcel for them will result in a net loss of overall resource value for the Reservation;

5. The location of the parking lot should be shifted away from the vernal pool;

6. A trust fund should be established for the proceeds of the transaction, to be used for long-term mitigation of the effects of the land swap;

7. The economic value to the Proponent may exceed “Fair Market Value” and additional compensation should be sought.

The Proponent has responded by denying items 1 and 7 (these issues are addressed by FBH above); by claiming that the parking lot has been shifted away from the vernal pool and by not saying much of anything about the Marbled Salamander other than agreeing that the DCR parcel and adjacent vernal pool “is moderate to high value for supporting breeding conditions for the marbled Salamanders.”

FBH requests that the Proponent supplement the FEIR by supplying detailed plans to mitigate potential harm to the existing vernal pool adjacent to the DCR parcel, which is a Marbled Salamander habitat.

D. The Proponent’s Section 61 Findings Fail to Adequately Address Mitigation Issues Raised by MHC

The Massachusetts Historical Commission in its comment letter states that:

1. The Proponent should be required to consult MHC on the parking lot design so that MHC can make a determination of effect to the Blue Hills Multiple Resource Area, pursuant to 950 CMR 71;

2. The Proponent’s plans contain insufficient detail.

In response, the Proponent states that plans will be provided to MHC “following the completion of MEPA review and during the local site plan review.”

FBH contends that this response is inadequate and that the FEIR must be supplemented by including more detailed plans, including “elevation drawing, architectural renderings, and specifications of the proposed new infrastructure, detail the consultation conducted with DCR to achieve their agreement with the new construction and its design compatible with the reservation, and include the revised MUA,” as requested by MHC.

CONCLUSION

Friends of the Blue Hills respectfully requests that the Secretary order the Proponent to file a supplemental FEIR, pursuant to 301 CMR 11.08(8)(c), based on the foregoing objections.

Respectfully Submitted,

Friends of the Blue Hills


By: _____________________________________
John B. Sheehan
Chair, Advocacy Committee