Trolley lawsuit thrown out

June 26, 2009
By

JOHN RUCH

Local activists will appeal

A lawsuit seeking restoration of MBTA Green Line trolley service through central Jamaica Plain was thrown out of court last month after a judge ruled it was filed too late.

The local Arborway Committee, a pro-trolley resident group that filed the lawsuit as a last-ditch trolley restoration effort, will appeal the decision, according to group head Franklyn Salimbene.

“If the appeals court doesn’t agree, [the lawsuit], for all intents and purposes, is over,” Salimbene said in a Gazette interview last week at his Pondside home.

There appears to be little dispute over the general claim of the suit: that the state obviously did not restore trolley service after once promising to do so. But that does not mean the Arborway Committee’s law-suit will be successful.

Even if the lawsuit is revived by the appeals court—which likely won’t hear the case until next year—there’s another procedural issue involved: whether the Arborway Committee has standing to sue in the first place.

Meanwhile, the state Executive Office of Transportation (EOT), which oversees the MBTA, is forging ahead with improvements to the Route 39 bus service that replaced trolleys in 1985. Those improvements include bus stop and sidewalk changes that essentially mimic those proposed during the last official trolley restoration planning five years ago.

EOT spokesperson Adam Hurtubise said that EOT is pleased with the decision, but declined further comment be-cause the appeal is pending.

For over a century, the “Arborway” trolley line ran between Heath Street and Forest Hills along S. Huntington Avenue and Centre and South streets. It was crucial to the growth of JP as one of Boston’s “streetcar suburbs.”

In 1985, the MBTA “temporarily” suspended the trolley service, putting riders onto the bus line, into their personal vehicles or onto the then-new Orange Line subway. Years of heated local controversy, major lawsuits and agreement violations by the MBTA followed over the next 20 years.

A settlement agreement for a 1990 lawsuit filed against the state by the Conservation Law Foundation (CLF), a non-profit environmental activism group, required the state to restore the Arborway trolley service. The trolley plan was one of many intended as air-quality mitigations from the Big Dig highway project downtown.

But the state missed the agreement’s 1997 deadline for restoring the trolley, fighting the idea through an-other round of lawsuits and a lengthy environmental review process. After being forced to begin trolley restora-tion planning, the EOT announced in 2003 that it would re-write environmental regulations to get out of restor-ing the trolley. That change, approved last year, replaces the local trolley air-quality benefits with new park-ing lots and commuter rail projects elsewhere.

In 2005, the CLF sued the state again to require Arborway trolley restoration and other projects. But the then-pending regulatory change made that lawsuit shaky. In a settlement agreement, the CLF allowed the state to kill trolley restoration, while requiring a public process to think of transit improvements in the “Arborway corridor.”

The Arborway Committee’s lawsuit, filed in 2007, is a reaction to that CLF/state settlement agreement. The Arborway Committee lawsuit alleges that the state breached its 1990 contract with the CLF by killing trolley restoration.

There is a three-year statute of limitation—a legally imposed deadline—on filing lawsuits alleging a breach of contract by the state in Massachusetts. The Arborway Committee claims it was within that deadline because EOT violated the contract in 2006 with the new agreement and the regulatory change.

But the judge ruled that the contract violation actually happened in 1997, when the state missed the trolley-restoration deadline from the 1990 agreement. That means the statute of limitation expired in 2000—seven years before the Arborway Committee filed suit.

“We think [the judge] got it wrong,” Salimbene said, arguing that the 1990 agreement allowed for extensions so that environmental review could happen. That review did happen, and was followed by about two years of MBTA trolley restoration planning conducted with a citizens advisory committee.

“If you stand back and take a look at the big picture, it’s pretty clear that everything happened was part of a whole piece,” Salimbene said.

If the appeals court agrees, the Arborway Committee next would have to prove it has the legal right to file the lawsuit. The organization is not a party to the contract in question. Salimbene said the Arborway Committee’s argument is that the air-quality improvements were intended to benefit JP residents directly, so JP residents have standing to sue.

As for the 2006 lawsuit settlement agreement requiring transit improvement planning, the EOT already has vio-lated that as well. It missed the agreed-upon deadline of completing the planning process by November 2007.

The process, originally described as open-ended community discussion, quickly turned into a Route 39 bus im-provement project focused almost entirely on ideas proposed by the EOT itself.

EOT is moving quickly to begin work on the core changes: reducing the number of bus stops and creating wid-ened sidewalks at some stops. The changes are intended to speed up bus trips and make the stops nicer, which could increase bus ridership.

A major spur to the improvement process is yet another lawsuit that successfully complained that many MBTA stops are not wheelchair-accessible, according to MBTA planner Erik Scheier.

Meanwhile, the MBTA reportedly is considering ending the current Green Line trolley service between Brigham Circle and Heath Street as a cost-cutting measure.

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