State Agency Not Immune from All Municipal Regulations: Town of Boxford v. Massachusetts Highway Dept., 458 Mass. 596 (2010).
In a case pitting municipal regulations against the immunities and authority of the State and its agencies, the Supreme Judicial Court recently took up the Commonwealth’s interlocutory appeal in Town of Boxford v. Massachusetts Highway Dept. The Commonwealth, on behalf of the Massachusetts Highway Department, filed its appeal after the Essex Superior Court denied the Commonwealth’s motion to dismiss the Town’s complaint for injunctive relief. In affirming, in part, the denial of the Commonwealth’s motion by the Superior Court, the SJC upheld the ability of local municipalities to enforce regulations against the State in certain circumstances.
The controversy between the Town and the Commonwealth stemmed from the Massachusetts Highway Department’s (a Commonwealth agency) maintenance of a salt storage facility on Town property. Claiming the facility – which Mass. Highway used to facilitate snow removal – had contaminated the local drinking water supply, the Town filed a four-Count complaint. In Count I, the Town claimed a violation of M.G.L. c. 111, § 122, alleging the salt shed constituted a public health nuisance. It thereby sought a preliminary injunction pursuant to M.G.L. c. 111, § 130, ordering the Commonwealth to cease salt shed operations and abate the environmental damage caused. In Count II, the Town alleged that Mass. Highway was presently causing or about to cause substantial harm to the environment and accordingly sought the same injunctive relief as in Count I. In Count III, the Town sought an order that the Commonwealth must comply with Town regulations (adopted pursuant to M.G.L. c. 111, § 31) and apply for permits from the Town prior to installing wells to replace those contaminated by the salt shed. Finally, in Count IV, the Town sought mandamus relief under M.G.L. c. 249, § 5, requiring the Department of Environmental Protection to institute an enforcement action against the Commonwealth for violation of M.G.L. c. 85, § 7A, which prohibits causing “damage to the environment.”
The SJC considered, and ultimately (like the Superior Court) rejected, the Commonwealth’s first argument for dismissal, namely that it enjoyed sovereign immunity with regard to Counts I and III. Although sovereign immunity applies to money judgments and, in general, to other interference by the courts, the SJC ruled that “a legislatively created entity, including a State agency, is subject to local regulations to the extent that those regulations ‘do not interfere with its ability to fulfill its essential governmental purposes and have only a negligible effect on its operations.’” The Court further noted that under M.G.L. c. 111, § 31, pursuant to which the Town promulgated its regulations regarding the installation of private wells, “the power to enforce local health and environmental laws is integral to the power to regulate.” Given the factual nature of the inquiry as to whether such enforcement has a “merely negligible effect” on Mass. Highways’ ability to fulfill its essential functions, the SJC agreed that the Superior Court had properly denied the motion to dismiss on these grounds and remanded Counts I and III for further proceedings.
With respect to Count II (to enjoin further harm to the environment), the Court analyzed the language of M.G.L. c. 111, § 122, which the Town argued authorized its Board of Health to issue an order requiring the Commonwealth, as a property owner, to abate the nuisance it had created on its property. Holding that dismissal of this Count was properly denied, the Court stated that, while the last sentence of Chapter 111, Section 122 provides for a fine, to which the Commonwealth cannot be subjected, “it does not follow that the highway department is also exempt from an order of injunctive relief . . .,” noting parenthetically that to hold otherwise would, in essence, be a ruling that the Commonwealth enjoyed sovereign immunity from the nuisance claim as well.
The SJC entered its only ruling in support of the Commonwealth on Count IV, the Town’s request for mandamus. Characterizing the duties of the DEP under M.G.L. c. 85, § 7A as discretionary, the Court pointed to the language of the statute which states the agency “issue [general] regulations,” and “, by specific order … regulate the place where [road salts] may be used.” Because mandamus relief is not appropriate to order the performance of discretionary (rather than ministerial) acts, the SJC affirmed the Superior Court’s dismissal of the request for mandamus relief.
Municipalities should take heart from the Boxford decision. While the Commonwealth enjoys considerable protection for its activities, such protection is not absolute. Particularly where health and environmental issues are concerned, the Commonwealth, as any property owner, can be called to answer for its transgressions.
Published in Developments in Municipal Law Fall 2011 Newsletter.