By MARK SARDELLA
WAKEFIELD —— The activist group opposed to Northeast Metro Tech’s plan to build a new regional vocational high school off Hemlock Road has suffered a major setback, as a Middlesex Superior Court judge this week denied their request for a preliminary injunction to stop the school from doing any site work related to the project.
Northeast Metro Tech plans to build a new $314 million school in conjunction with the Massachusetts School Building Authority on a forested hilltop site across Hemlock Road from the present school. At a Special Election on Jan. 25, 2022, voters in the 12 communities in the NEMT district overwhelmingly supported the plan.
Subsequent to the Special Election, a citizens’ group formed to try to stop the school from building on the forested hilltop site, citing environmental concerns.
On May 24, 2023, the Wakefield Zoning Board of Appeals approved the project, but on May 30, the Wakefield Conservation Commission refused to issue an Order of Conditions for the project.
Northeast Metro Tech has appealed the Conservation Commission’s denial of the project to the Massachusetts Department of Environmental Protection. No work can be done within the resource areas under the Conservation Commission’s jurisdiction until MassDEP issues its decision on the appeal.
But the school has gotten the OK from the federal Environmental Protection Agency to begin preliminary site work outside of the areas under the Conservation Commission’s jurisdiction. It was this preliminary site work that the plaintiffs (the forest advocates) have asked the court to issue an injunction to stop.
The plaintiff group includes 18 individuals: Karen Johnson, Jennifer Fanning, Christine Rioux, Bob Brooks, Simon Kopacz, Sasha Simone, Lee Farrington, Bronwyn Della-Volpe, Mary Judge, Sherri Carlson, Jane Robie, Janet Cohen, Brian Thomson, Alison Simcox, Douglas Heath, Robin L. Bergman, Joy Pearson and Kavita Karighattam.
Back on Aug. 10, 2023, the plaintiffs filed a suit against the Northeast Metro Tech (NEMT) district and the Massachusetts Division of Fisheries and Wildlife asking the court to declare that the NEMT project would damage the environment in violation of state and federal environmental protection laws. The plaintiffs’ suit alleges that the project violates the Massachusetts Wetland Protection Act (WPA). While they wait for that case to be heard, the plaintiffs asked the court for a preliminary injunction to halt any work on the project.
In its August 28 decision denying the injunction, the court notes that in late July, NEMT’s contractor, Gilbane Building Co. notified the Conservation Commission of the district’s intention to proceed with site preparation, including tree and vegetation removal outside on the Conservation Commission’s jurisdictional areas.
“The purpose of the letter,” the court notes, “appears to be intended to reassure the Conservation Commission that the district has no plans to begin work in the jurisdictional area in compliance with the Conservation Commission’s denial of an Order of Conditions” at least until such time as the MassDEP rules on the appeal.
“The issue here,” the court notes, “is that the preparatory site work is expected to be conducted outside the wetlands and the Buffer Zone.”
The court decision further notes that the work the plaintiffs are trying to stop “is not within the protected area. As such, it is difficult to find the statute or regulation the district is violating. Again, this court can only enjoin activity detrimental to the environment when it constitutes a violation of a statute, ordinance or bylaw regulation. While the plaintiffs argue that the preparatory site work cannot be separated from the project as a whole, the Wetlands Protection Act and its accompanying regulations are inapplicable to activities outside their jurisdictional reach, and the District has, by all accounts, complied with all other statutory and regulatory requirements.”
The court decision takes particular note that the Wakefield Conservation Commission did not join in the effort to stop the site work outside of its jurisdiction.
“Telling is the fact that the Conservation Commission, through the town of Wakefield, is not before the court seeking a preliminary injunction to stop the preparatory work. Presumably, because they have no jurisdiction to assert such a challenge. Moreover, it appears that the District has been working cooperatively with Wakefield’s engineering department to proceed with preliminary site work.”
The court ultimately determined that when it comes to work outside the jurisdictional resource area, the plantiffs “have failed to meet their burden as it relates to the preparatory site work at issue in the motion for injunctive relief.”
The court decision was written by Superior Court Justice Salim Rodriguez Tabit, who also issued a finding that “The injunctive relief sought is not in the public interest.”
The judge continues, “Because the court concludes that the plaintiffs have failed to demonstrate that they are likely to succeed on the merits of their claims related to the preliminary site work and that such an injunction would not be in the public interest, the court DENIES the preliminary injunction.”
The judge goes on to order the District to refrain from doing any work in the wetlands or buffer zone (the jurisdictional resource area) until such time as MassDEP issues a Superseding Order of Conditions.
The court’s order states that the District may proceed with preliminary site work not within the wetlands or buffer zone.