To prove that such a smaller project could be built without environmental harm the Secretary's ruling required quantification of traffic numbers for a reduced build alternative: citing "DCR's (Department Conservation and Recreation - old M.D.C.)concerns regarding the validity of historical traffic numbers," the Secretary's ruling stated in 2006: "The primary impact of concern for this project is traffic. Therefore, an appropriate reduced build alternative will be one whose associated traffic impacts can be reasonably mitigated without adversely affecting the character of the parkways. Necessary and responsive mitigation, in turn, cannot be developed until the project's traffic impacts have been quantified, which itself requires accurate contemporary baseline information."
The Fells site developers refused to comply with this ruling and refused to provide any such traffic data for public review, and in September 2009 the environmental affairs Secretary did an about face and rescinded the 2006 ruling requiring that data of traffic level environmental impacts on a new smaller project be reviewed by MEPA and the public prior to permits being granted.
The Secretary simply removed the project from any further environmental review, based solely on the claims made by the developers that the project required no permits because they claimed there would be no need to make alterations to the historic parkways to add capacity for thousands of additional daily traffic trips.
This deal stemmed from a letter dated April 15, 2007, in which the developers notified state officials of a proposed change in the configuration of a revised project plan, consisting of a mere 10% reduction in the proposed new office space to 225,000 square feet, and a mere 10% reduction in the proposed new residential space to 405 dwelling units compared to the prior project scale which had been rejected by the state in 2006. The developers claimed that, with the new configuration, project traffic would be an additional 7,540 daily traffic trips. The developers unilaterally declared that "the project is now in line with historic traffic levels and we feel that a compelling argument can be made that there is now no requirement for [a DCR Access Permit]."
In presenting this unsupported claim, the Developers ignored questions that DCR and the Secretary had raised in prior environmental MEPA reviews about inconsistencies in the developers' earlier reports of the baseline traffic level for the Site, a matter that the Secretary had required to be addressed in the Supplemental Final Impact Report.
Subsequently, throughout the period between July 3, 2008, and April 21, 2009, the developers negotiated with representatives of DCR and EOEEA in an effort to identify a method for the project to proceed without any further MEPA review. Despite prior doubts raised by DCR staff regarding the accuracy of the developers' traffic numbers the primary objective of these negotiations was to create a scheme by which the developer could begin project construction immediately without submitting any traffic impact reports for public review. On September 18, 2009, the goal of the developers to begin immediate construction was granted in a Memorandum of Understanding signed by DCR and the developer, an action which is being challenged in Superior Court by citizens, the City of Medford and the Friends of the Middlesex Fells Reservation.
