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COMMONWEALTH OF MASSACHUSETTS
SUPERIOR COURT DEPARTMENT
OF THE TRIAL COURT

SUFFOLK, ss.

CIVIL ACTION NO.

CITY OF BOSTON,
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COMPLAINT

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WYNN MA, LLC,

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Defendant.

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INTRODUCTIO
1.

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The City of Boston ("Boston," or the "City") brings this action for

declaratory relief challenging the decision of the Secretary of the Executive Office of
Energy and Environmental Affairs (the "Secretary") to grant Wynn MA, LLC ("Wym")
cezificates determining that Wynn's environmental impact reports for its proposed

project adequately and properly comply with the Massachusetts Enviromnental Policy
Act, G.L.c. 30, 61, et seq. ("MEPA"), and its implementing regulations, 301 CMR
11.00 (the "MEPA regulations").
2.

Wynn's final enviromnental impact report failed to disclose the full extent

of the serious environmental impacts--in particular, impacts related to traffic--that will

be caused by the construction and operation of its proposed project, and further failed to
demonstrate that all feasible measures have been taken to avoid or minimize those
impacts. Wynn's final environmental impact report thus violates MEPA and its

implementing regulations.
3.

Wynn's proposed project is a massive resort casino to be located in the

dense urban municipalities of Boston and Everett, Massachusetts. Comprising over 3

million square feet, Wynn's proposed project will include over 4,500 gaming positions,
over 600 hotel rooms, nearly 3,000 parking spaces, and tens of thousands of square feet
of convention, retail, amenity, and restaurant space. Wynn projects that its proposed

casino will generate approximately 20,000-23,000 new car trips per day by its patrons
and employees.

4.

The vast majority of these car trips will travel through the Sullivan Square

rotm'y and Rutherford Avenue in the Charlestown area of Boston, a high-speed

thoroughfare that is already one of the most congested choke points in the
Commonwealth's traffic infrastructure. Traffic congestion creates serious environmental
and public health concerns, including hazardous emissions (CO2, NOx), dust, and noise.
Successive City administrations have devoted considerable resources over the past 17
years to identify a workable solution. The process has involved multiple consultants and
experts, as well as extensive public outreach with Charlestown's residents.
5.

From this exhaustive process emerged the December 2013 Sullivan

Square Disposition Study ("Study"). The Study proposed a traffic-calming surface

reconfiguration of Sullivan Square that included: eliminating the rotary, removing the
Rutherford Avenue tunnel, and recovering up to 7 parcels of land for mixed-use
development. The Study envisions a revitalized, pedestrian- and bicycle-friendly

neighborhood with a conventional gridded layout, reconnecting the Charlestown

neighborhood to the existing public transit system and reuniting the two sections of

Charlestown that are currently bisected by the existing layout.

6.

The City's implementation of the plan envisioned in the Study is

underway. Prior to the Secretary's certification of Wynn's final environmental report, the
City had already commissioned surveying and traffic count work necessary to reach the

25% design stage.

7.

Wyrm's project is fundamentally incompatible with the City's plans for its

own streets. A central premise of the Study is the decrease of congestion and calming of
traffic. Neither Sullivan Square's current configuration, nor its future iteration, can
accommodate the influx of tens of thousands of additional cars per day generated by
Wynn's proposed casino.

8.

Despite acknowledging the existence of the City's redevelopment plans

for Sullivan Square, none of the traffic mitigation proposals in Wyml's environmental
impact reports accommodate the City's plans. In fact, Wynn did not even present a longten'n plan for Sullivan Square to mitigate the casino traffic. Instead, Wynn proposed only
"interim" mitigation measures that are grossly insufficient to mitigate the traffic impacts
of its proposed project.
9.

The City has consistently expressed these concerns fi'om the outset of the

MEPA process, commenting at every stage of Wynn's submissions of environmental

impact reports. Despite numerous meetings between City officials and Wynn
representatives, Wynn has consistently ignored the City's concerns, failing to fully

disclose the environmental impacts of its project and failing to provide clear and direct
responses to the City's comments.

10. More fundamentally, Wynn has simply failed to present any planlet

alone a feasible plan--to mitigate the traffic impacts of its proj ect in conformity with the
City's plan to overhaul and reconfigure Sullivan Square.
11. The Secretary's celification of Wynn's final environmental impact report
was thus in error. Wynn has not complied with MEPA and its implementing regulations.
If the Secretary' s decision is not declared to be invalid, Wynn's project will generate
severe damage to the environment, causing the residents of Charlestown and the greater
Boston area to suffer environmental impacts that will materially degrade their health,

well-being, and quality of life.

THE PARTIES
12. Plaintiff City of Boston is a municipal corporation located in the
Commonwealth of Massachusetts with a principal place of business at 1 City Hall
Square, Boston, Massachusetts 02201. The City of Boston is a "political subdivision of
the commonwealth" as that term is used in G.L.c. 214, 7A.

13. Defendant Wynn MA, LLC ("Wynn") is a casino developer with a

principal place of business at One Horizon Way, Everett, Massachusetts 02149. Wynn is
a "Person" and a "Proponent" as those terms are defined and used in G.L.c. 30, 62 and
G.L.c. 214, 7A.

JURISDICTION AND VENUE

14. The Coul has subject matter jurisdiction pursuant to G.L.c. 214, 7A,
G.L.c. 30, 61-62H, G.L.c. 212, 4, G.L.c. 231A, 1-2, and under Massachusetts
common law.

15. The Com has personal jtu'isdiction over Wynn pursuant to G.L.c. 223A,
as Wynn conducts business and owns real propely in the Commonwealth.

16. Venue in Suffolk County is proper pursuant to G.L.c. 223, 9 and G.L.c.

214, 7A.

STATEMENT OF FACTS
A,

THE MASSACHUSETTS ENVIRONMENTAL POLICY ACT

17. MEPA mandates that all "agencies, departments, boards, commissions and

authorities of the commonwealth shall review, evaluate, and detelrnine the impact on the
natural environment of all works, projects or activities conducted by them and shall use
all practicable means and measures to minimize damage to the environment." G.L.c. 30,

61. Damage to the environment includes, among other things, vehicle traffic, air
pollution, noise and impact to transit operations. MEPA is intended to ensm'e
environmental impacts are reviewed and addressed first, before any permitting or other
action begins on a project.
18. MEPA provides that "[u]nless a clear contrary intent is manifested, all
statutes shall be interpreted and administered so as to minimize and prevent damage to
the environment." G.L.c. 30, 61.

19. The Massachusetts Department of Transportation ("MassDOT"), the

Massachusetts Bay Transportation Authority ("MBTA"), and the Massachusetts Gaming

Commission ("MGC") are all "Agencies" as that tel is defined by MEPA and its
implementing regulations. G.L.c. 30, 62; 301 CMR 11.02(2).
20. MEPA and the regulations promulgated thereunder by the Secretary
require that the proponent of any project that will need Agency Action must notify the
Secretary of its likely environmental impacts by filing an Environmental Notification
Form ("ENF"). "Agency Action" is defined as "any formal and final action taken by an
Agency in accordance with applicable statutes and regulations that grants a Permit,

provides Financial Assistance, or closes a Land Transfer." 301 CMR 11.02(2).

21. After the filing of the ENF, the Secretary then determines whether an
Environmental hnpact Report ("EIR") is required for the project based on whether the
project triggers certain "review thresholds" defined by MEPA's regulations. 301 CMR
11.03. If the Proponent of a project is required to prepare an EIR, the Secretary
prescribes a scope for the report that must properly analyze all damage to the

environment in conformity with the terms provided by MEPA regulations. 301 CMR
11.07. The EIR must use accepted methodology to analyze the project's impacts and
then propose mitigation to minimize or avoid damage to the environment. The linchpin
of an EIR's analysis is the consideration and analysis of all reasonable alternatives to the
proposed project that would mitigate, minimize or avoid damage to the environment.
G.L.c. 30, 61, 62A-62B, 301 CMR 11.07.

22. Only if that EIR adequately and properly complies with MEPA and its
implementing regulations may the Secretary celOdfy the EIR. If the EIR is not satisfactory
and the Proponent wishes to continue with the project, the Proponent must file

supplemental EIRs pursuant to a scope ordered by the Secretary until its filings comply
with MEPA and its regulations.
23. Only after the Secretary issues a certificate on the EIR (or supplemental
EIR as the case may be) may Agencies take Agency Action, including issuing Permits or
closing Land Transfers, in furtherance of a project under MEPA jurisdiction. MEPA's
regulations provide: "Unless otherwise required by other applicable statutes or

regulations, an Agency may not take Agency Action on a Project that is subject to MEPA
jurisdiction and meets or exceeds any review thresholds unless and until the Secretary has

determined that an EIR is not required or the Secretary has deten'nined that the single or

final EIR is adequate and 60 Days have elapsed following the publication of the notice of
the availability of the single or final EIR in the Environmental Monitor." 301 CMR

11.12(4)(a).
24. Before taking any Agency Action, Agencies must issue detailed written
findings documenting that "all feasible measures have been taken to avoid or minimize
[environmental] impact" from the project. G.L.c. 30, {} 61.

25. MEPA and its regulations strictly prohibit Proponents and any
participating Agencies from segmenting, phasing, dividing, or delaying any component
of a Project "to evade, defer or curtail MEPA review." G.L.c. 30, {} 61. To this end, the
MEPA regulations instruct that a Proponent, any Participating Agencies, and the
Secretary must present information in an EIR sufficient to analyze the environmental

impacts for "the entirety of the Project, including any likely future Expansion, and not
separate phases or segments thereof." 301 CMR 11.01 (2)(c). "The Proponent, any
Participating Agency, and the Secretary shall consider all circumstances as to whether
various work or activities constitute one Project, including but not limited to: whether
the work or activities, taken together, comprise a common plan or independent
undertakings, regardless of whether there is more than one Proponent..." 301 CMR

11.01(2)(c).
26. MEPA and its implementing regulations also require a Proponent to file a
"Notice of Project Change" with the Secretary any time there is "any material change in a

Project prior to the taking of all Agency Actions for the Project." 301 CMR 11.10(1).

B.

THE GAMING ACT

27. In November 2011, the General Coul of the Commonwealth of

Massachusetts enacted, and the former Governor signed into law "An Act Establishing
Expanded Gaming in the Commonwealth," Mass. St. 2011, c. 194 (codified, in part, at
G.L.c. 23K, et. seq.) (the "Gaming Act"). The Gaming Act sets forth a comprehensive
regulatory scheme, establishing strict parameters for, among other things, the issuance of
gaming licenses to applicants.

28. The Gaming Act sets forth specific criteria that an applicant must meet to
be eligible to receive a gaming license. The Gaming Act tasks the MGC with fairly and
impartially evaluating whether an applicant tbr a gaming license satisfies all of these
statutorily enumerated criteria. G.L.c. 23K, 9-10, 12, 14-15, 18.
29. The requirement that applicants for gaming licenses mitigate adverse
environmental impacts is a dominant theme of the Gaming Act and the gaming license
application process. Applicants are required to mitigate impacts to "host communities"
and "sun'ounding communities." The Gaming Act defines a "host community" as "a

municipality in which a gaming establishment is located or in which an applicant has

proposed locating a gaming establishment." G.L.c. 23K, 2. A "surrounding

community" is a municipality in proximity to a host community that is "likely to

experience impacts from the development or operation of a gaming establishment"...

"including municipalities for which the transportation infrastructure provides ready

access to an existing or proposed gaming establishment." G.L.c. 23K, 2.
30. For instance, the Gaming Act's Findings and Declarations state that a

fundamental policy objective is that gaming license applicants shall demonstrate a

"dedication to community mitigation, and shall recognize that the privilege of licensure
bears a responsibility to identify, address and minimize any potential negative

consequences of their business operations." G.L.c. 23K, 1(8).

31. To that end, the Gaming Act expressly prohibits the MGC from issuing a
gaming license to an applicant unless the applicant demonstrates how it proposes to
address host and surrounding community impact and mitigation issues and identifies "the
infrastructure costs of the host and sun'ounding communities incurred in direct relation to
the construction and operation of a gaming establishment and commit to a community
mitigation plan for those communities." G.L.c. 23K, 15(6)-(7).
32. Before it can award a gaming license, the MGC must issue a statement of

findings describing how a gaming applicant will advance the following objectives, among
others: "utilizing sustainable development principles" and "mitigating potential impacts
on host and sun'ounding communities which might result from the development or

operation ofthe gaming establishment." G.L.c. 23K, 18(8), (14).

33. Mitigation oftraffic and other environmental impacts factors heavily into
the Gaming Act's licensing requirements. The Legislature required "that total
infi'astructure improvements onsite and around the vicinity of the gaming establishment,

including projects to account for traffic mitigation as determined by the commission,

shall be completed before the gaming establishment shall be approved for opening by the
commission." G.L.c. 23K, 10(c).

34. Wynn submitted the final phase of its application for a gaming license on
December 31, 2013, and filed updates and clarifications thereto until the MGC awarded
the license no earlier than November 6, 2014. The license included several conditions

and pursuant to MEPA regulations; it will be effective only when the MGC publishes its
findings required by G.L.c. 30, 61.

C. ENVIRONMENTAl, IMPACTS OF WYNN'S PROPOSED CASINO

35.

Wynn's proposed project is a three-million (3,000,000) square-foot casino,

resort, shopping, and entertainment complex (the "Proposed Casino"). Wynn plans to
build the Proposed Casino on a parcel formerly owned and operated by the Monsanto
Chemical Company (the "Wynn Parcel") in Boston and Everett.
36. The key features of the Proposed Casino include:

(a) 4,580 gaming positions (slot machines, card tables and the like)
across a 190,461 square foot Proposed Casino floor;

(b) a 390-foot hotel tower with 629 hotel rooms spread over 621,774
square feet (billed as the largest rooms in the Boston area);
(c) a 37,068 square-foot convention center and entertainment space;
(d) dozens of restaurants, bars, shops, and boutiques in a multi-stot

mall totaling more than 107,000 square feet; and

(e) a roughly 2,000,000 square-foot patron and employee multi-site
parking complex, with over 3,000 parldng spaces.

37. The Proposed Casino is a "Project" as that term is defined by MEPA and
its implementing regulations. G.L.c. 30, 62. In connection with the Project, and as

required by G.L.c. 30, 62A and 301 CMR 11.03, Wynn submitted to the Secretary an
Expanded Environmental Notification Form ("EENF"); a Draft Environmental Impact
Report ("DEIR"); a Final Environmental Impact Report ("FEIR"); a Supplemental Final
Environmental Impact Report ("SFEIR"); and a Second Supplemental Final
Environmental Impact Report ("SSFEIR") (the "MEPA filings").
38. The Proposed Casino is poorly served by public transportation. It is
located more than 1.2 miles from the nearest MBTA subway station, Sullivan Square on
the Orange Line. It also is approximately about 1.5 miles and 3.1 miles, respectively,

from the Wellington and Malden Center Stations on the Orange Line, the two transit

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stations from which Wynn will provide shuttle bus service for patrons and employees.

39. Most ofthe vehicle traffic traveling to and from the Proposed Casino is
projected to use Interstate 93.
40. As a result of the lack of public transportation, the Proposed Casino will

generate over 20,000 new vehicle trips per day during the week and over 23,000 daily
trips on Saturdays. These new vehicle trips will cause substantial increase of air
emissions in dense urban environments and environmental communities, and degrade the
quality of life around the Proposed Casino, including in Boston, Everett, Medford and
Somerville.
41.

About three-quarters (75%) of the traffic, or more than 16,000 vehicles

during peak demand, will travel tba'ough Sullivan Square and the Rutherford Avenue
corridor in the Charlestown section of Boston. These Boston roadways lie between
Interstate 93 and the Proposed Casino.
42. Cun'ently, these roadways are graded at a Level of Service of"F" at many
hours of the day, the worst traffic grade a roadway can receive. On information and

belief, these local roadways are among the most heavily congested of their type in the
Commonwealth.

43. On information and belief, during construction of the Proposed Casino,

there will be extensive off-site transportation of excavated soil laced with contaminants,

including lead and arsenic. There will be an estimated 76,500 dump truck trips
(approximately 214 per day) tba'ough Sullivan Square and the Rutherford Avenue
con'idor in Charlestown to Interstate 93. These convoys calTying contaminated soil will
travel in close proximity to schools, parks, playgrounds, and neighborhoods.

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D.

BOSTON'S PLAN FOR SULLIVAN SQUARE AND RUTHERFORD

AVENUE
44. The public roads in Sullivan Square and the Rutherford Avenue con'idor

("City of Boston Roads"), over which more than 16,000 vehicles destined for the
Proposed Casino will travel at peak times, are exclusively owned, controlled, and
maintained by Boston. None are owned, controlled, or maintained by MassDOT, or any
other federal, state, or municipal agency or entity.

45. The City of Boston Roads include a tunnel passing underneath Sullivan
Square (the "Tunnel"). The Tunnel requires extensive maintenance, at considerable cost,
to be kept open.
46. As the sole and exclusive owner of the City of Boston Roads, the City
alone has the legal responsibility for their maintenance, safety, and funding.

47. The City also is the only lawful permitting authority for the City of Boston
Roads. Any pelTnits required to change the layout, reconstruct, repair, open or in any

way alter any of the City of Boston Roads must be issued by the City of Boston's Public
Improvement Commission. This requires an applicant to apply for and obtain the consent
of several City agencies and a comprehensive review procedure with at least two public
hearings.

48. Beginning in 1997, well before the enactment of the Gaming Act, the City
engaged in various studies to mitigate the severe traffic congestion in the neighborhoods
in and around the City of Boston Roads. The most recent study is the December 2013

Sullivan Square Disposition Study (the "Study") attached as Exhibit 1.

49. The Study was a collaborative process with residents of Charlestown to
'guide the upcoming revitalization of Sullivan Square" and transform it into a

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"pedestrian-friendly neighborhood" progranmaed for transit-oriented redevelopment and

safe, walkable roadways. The Study concluded: "Transitioning [the area] fi'om an
intersection to drive through, back to its rightful place in the urban fabric of Charlestown,
Sullivan Square is primed for reestablishment as a vital and walkable.., neighborhood."
50. The multi-year planning process for the reconfiguration of the City of
Boston Roads involved immmerable meetings and communications between City
planning departments and Commonwealth agencies. Charlestown residents actively
participated, including through co:mnent at many public meetings.

51. Following the release of the Study, the City of Boston conducted further
planning processes culminating in the City's commitment to construct the Charlestown
community's preferred conceptual plan for reconfiguration of the City of BostonRoads

(the "City Plan").

52. The City Plan has since advanced through completion a 15% Design Plan,
which provides the actual physical layout of the street grid for the City of Boston Roads.
A copy of the 15% Design Plan is attached as Exhibit 2. The City is actively advancing
its plan to the 25% design stage with federal funds ea:xnarked for the City Plan. In the
summer and fall of 2015, the City conducted and continues to conduct road surveys of the

City of Boston Roads and perform updated traffic counts to advance the City Plan.

E.

INCOMPATIBILITY OF TIlE WYNN PROPOSED CASINO AND THE

CITY PLAN
53. The Proposed Casino and City Plan are fundamentally incompatible. The

Wynn Proposed Casino demands a dramatic increase in vehicular traffic, the vast

majority of which will travel tba'ough Sullivan Square and the Rutherford Avenue
corridor in the City, while the City Plan calls for an appreciable decrease in traffic

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congestion.

54. Generally, the City Plan is $100+ million roadway improvement project
that defines specific improvements to enhance the urban environment with greater
pedestrian connectivity and new transit-oriented land development opportunities. The
City Plan will remove existing roadway grade separations that form a ban'ier for
pedestrian and bicycle travel east-west across Sullivan Square and Rutherford Avenue
and introduce a traditional street grid system.

55. The City Plan includes elimination of the Tunnel and reduction of lanes on
Rutherford Avenue, from tbxee in each direction, to two in each direction. The Tunnel is
a hulking, unattractive structm'e that, together with the Sullivan Square rotary, bisects the
area. It is largely impassable to pedestrians and bicyclists and hinders commercial
development. The Tunnel is inconsistent with the City's "Complete Streets" vision for its
roadways and neighborhoods.
56. The overarching vision of the City Plan is to enhance the entire area

though a walkable, gridded city block layout. The grid system will include pedestrianand bicycle-friendly stl"eetscapes and sidewalk frontage that capitalizes on the new urban
environment and proximity to public transportation at the Sullivan Square MBTA station.

This is only accomplished by removing the Tunnel and the Sullivan Square rota2.
57. The City Plan cannot accommodate traffic from the Proposed Casino.

Based on projections for future development at the time of its adoption, the City Plan is
designed to accommodate:

(a) the 25,000 vehicles per day that culTently use the Sullivan Square
rotary;

(b) the 15,000 vehicles per day that now pass under Sullivan Square
in the Rutherford Avenue Tunnel;

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(c) vehicle traffic associated with projected development approved

at the time of the City's adoption of the City Plan (including
Assembly Square in Somerville); and
(d) vehicle traffic associated with anticipated new development
within the new urban environment in the area.
58. There simply is no room for the more than 16,000 daily casino vehicle

trips at peak times that the Proposed Casino will introduce into the Sullivan Square and
Rutherford Avenue corridor.
59. The Proposed Casino, if it were permitted to proceed, would require that
the Tunnel remain open and will create an overwhelming number of new traffic demands

on the City of Boston Roads that will forever foreclose the oppolunity for the City to
implement the City Plan.

F.

PRE-LICENSURE MEPA FILINGS

60. On May 31, 2013, Wynn submitted an Expanded Environmental

Notification Form ("EENF") pursuant to MEPA and its implementing regulations to the
Secretary.

61. Based on a preliminary traffic study, the EENF projected that the
Proposed Casino would generate 29,384 total vehicle trips on Fridays and 35,754 vehicle
trips on Saturdays. Notwithstanding the distance from the nearest MBTA stations to the
site, and the gridlock within the area for Wynn's proposed fixed-route shuttle buses to

navigate, the EENF predicted that 10 percent of Proposed Casino patrons would an'ire by
public transportation. The EENF called for construction of 3,575 parking spaces at the
Proposed Casino.

62. The EENF noted "The City &Boston has undertaken an extensive study
of alternatives to improve traffic operations and safety at Sullivan Square, reconnect the

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Charlestown neighborhood to the Mystic River waterfront, and improve pedestrian and
bicycle access. If it is advanced, the preferred alternative that was selected by the city
after extensive public outreach and comment will entail the removal of the cun'ent
Rutherford Avenue underpass and the Sullivan Square traffic circle, and replacement of

these facilities with a landscaped surface street grid controlled by a coordinated traffic
signal system. The City is cun'ently soliciting proposals for consultants to advance the
design of the improvements."

63. In the EENF, Wynn did not address the incompatibility of the massive
influx of traffic that it would introduce into the City of Boston Roads with the City Plan.
The only mitigation measures that Wynn proposed for Sullivan Square in the EENF were
(1) updating traffic signal timing at two intersections; (2) installing a traffic signal in one
location; and (3) adding a lane to Main Street. Although all changes would require
permits from Boston's Public Improvements Commission, Wy:m's table of anticipated
local permits in the EENF made no mention of these permits required from Boston.
64. Boston commented on the EENF, noting that the Proposed Casino's

"potential project related traffic impacts in Boston will be significant and any proposed
strategies to mitigate these impacts may be incompatible with on-going planning effols
by the City to enhance the urban environment in Sullivan Square and along Rutherford
Avenue." A true and accurate copy of the City's EENF Comments is attached as Exhibit
3.
m

65. Boston also commented that the existing site driveway serving the Wynn

Parcel intersects Alford Street (Route 99) at the Boston-Everett city line, with half of the
driveway cun'ently located in Boston and the other half in Everett. Boston commented

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that Wynn provided no acknowledgment of either the City permits that would be required
from the Public Improvement Commission to alter or close that roadway, or the zoning
permissions that would be required to operate a Proposed Casino on property served by
an access road that is a public way owned and controlled by Boston. Exhibit 3 at p. 2.
66. Among other pelinent comments, the City questioned the 10 percent
mode share predicated for public transit usage to the Proposed Casino where the distance
to MBTA stations and "required transfers and wait times between subway and shuttle
will make it difficult to achieve a ten percent mode share." Twenty-five shuttle bus trips
per hour would be requh'ed at peak times to accommodate Wynn's projected volume of
patrons an'iving on the MBTA. That number of shuttle buses is impossible to navigate
efficiently tba'ough rush hour traffic.

67. The City also calculated that standard parking methodology dictates that
the Proposed Casino requires 6,000 parking spaces, not including employee spaces.

Consequently, the City cautioned that the 3,575 parking spaces planned at the time of the
filing of the EENF (now reduced to 2,930) was inadequate, and would cause traffic to
spill onto Boston and Everett roadways, as patrons would need to locate street-side or

other parking facilities. Exhibit 3 at 2-5.

68. Lastly, the City comanented extensively on the Proposed Casino's

incompatibility with the City Plan, writing in relevant part:

In February 2013, the Boston Transpolation Depalment concluded a threeyear long community process to develop .a new design for Sullivan Square
and Rutherford Avenue. The proposed project does not take into
consideration and is not compatible with improvements proposed in the

redesign of these adjoining roadways in Boston. The EENF (page 22) states
that improvements proposed for Lower Broadway in Everett will be

consistent with plans generated by the City of Boston for Sullivan Square.
However, Boston's Sullivan Square plans and Rutherford Avenue plans did

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not anticipate development of a Proposed Casino resort generating nearly

36,000 vehicle trips per day and more than 21,000 new vehicle trips per day
on Boston's Alford Street just north of Sullivan Square and Rutherford
Avenue.

The key elements of Boston's redesign of Sullivan Square include

replacement of the rotary and undelpass with a neighborhood-scaled
network of surface streets and reducing Rutherford Avenue to two lanes in

each direction with appropriate turn lanes. This design effectively

distributes existing and projected traffic across a regular street grid. Traffic
projections include a conservative five percent growth to 2030 and new
traffic from Assembly Square development in Somerville.

The Wynn project fails to recognize this future constrained traffic capacity
at Sullivan Square. The traffic information provided in the EENF indicates
that Saturday traffic volumes on Alford Street, which links the Proposed
Casino resoa site with Sullivan Square and Rutherford Avenue will increase

from 25,000 vehicles per day to 46,096 vehicles per day. Similarly, Friday
volumes are expected to increase from 26,000 vehicles per day to 43,338
vehicles per day. These expected increases, 67 percent on Friday and 84
percent on Saturday, are more than six and eight times the increases
considered in the current roadway design plans. These increases are clearly
not consistent with, nor are they compatible with, the transportation plans
developed for these principal Charlestown roadways. Furthermore, the
traffic signal coordination improvements that the proponent does propose

(page 4-18) only pel10emate existing deficiencies at Sullivan Square by

failing to reconfigure the rotary itself.
Exhibit 3 at 5.
69. Because of this inherent incompatibility, Boston requested that the
Secretary require that Wynn's DEIR "demonstrate how the traffic generated by the

project will be accommodated assuming the new design and capacity for Sullivan Square
and Rutherford Avenue in Charlestown." Exhibit 3 at 5. The City also asked the
Secretary to require Wynn to include a viable strategy for shuttle bus service to/from
Sullivan Square or decrease the assumed ten percent transit mode share." The City
further requested the Secretary to require Wynn to "contact the City of Boston to

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understand the full scope of its right-of-way permitting jurisdiction relative to the
proposed project and commence an extensive community process in Charlestown to
discuss transportation impacts."

70. The Secretary issued a Certificate on Wynn's EENF on July 26, 2013,
providing a comprehensive scope for Wynn to complete in its DEIR. A true and accurate

copy of the Secretary's Certificate on the EENF is attached as Exhibit 4.

71. On December 16, 2013, Wynn submitted its DEIR to the Secretary. The
DEIR projected the Wynn Proposed Casino to generate 21,552 "net new weekday vehicle
trips" and 25,456 "net new weekend vehicle trips," again with the overwhelming majority

of those trips traveling through Sullivan Square and the Rutherford Avenue corridor from
Interstate 93.
72.

Again, Wynn projected in the DEIR that "[g]iven the Project's proximity

to the Orange Line, and the plan for frequent Proposed Casino shuttle service, it is

estimated that 10% of patron trips will use the Orange Line." In the DEIR, Wynn
announced an intention to construct water shuttle facilities in downtown Boston and at
the Proposed Casino. Despite substantial infrastructure and engineering problems,
including bridges with low clearance, speed restrictions in Boston Harbor, winter

conditions, and significant distance, Wynn's DEIR projected that 3% of patron vehicle
trips would travel to the Proposed Casino via water shuttle.
73. Again, the Wynn DEIR acknowledged that Boston planned to remove "the
cun'ent Rutherford Avenue underpass and the Sullivan Square rotary, and [construct the]

replacement of these facilities with a landscaped surface street grid controlled by a

coordinated traffic signal system." Wynn noted that the City Plan was at the pre-25%

19

Design stage.

74. The Wynn DEIR proposed identical traffic mitigation to that proposed in
the EENF with the modest addition of an unspecified commitment to fund planning of the
City Plan. The Wynn DEIR addressed none of the comments provided by Boston on the
EENF.
75.

Boston also filed public comments on the Wynn DEIR, stating that

Wynn's DEIR substantially overstated the capacity of the roadway system in Sullivan
Square to provide overly optimistic traffic projections. For instance, the City explained,
Wynn's DEIR assumed that Rutherford Avenue would continue to operate with a total of
six lanes, where the City Plan calls for a downsizing to four lanes. The City further
commented that Wynn's DEIR underestimated traffic volumes by using unaccepted
methodology, and offered only a vague description of infrastructure improvements in
Sullivan Square and the Rutherford Avenue con'idor without any plans or analysis of

their feasibility and impact to address the concerns provided in its comments on the
Wynn EENF. A true and accurate copy of Boston's comments on the DEIR are attached

as Exhibit 5.
76.

The Secretary issued a Certificate on Wynn's DEIR on February 21, 2014,

providing a further detailed scope of items for Wynn to address in its FEIR. The
Certificate determined that the traffic projections provided in the DEIR were deficient
and required "additional data gathering, analysis, and assessment of alternatives and
mitigation measures." The Certificate concluded that the deficiencies were most
pronounced with the Sullivan Square traffic projections. A true and accurate copy of the

DEIR Certificate is attached as Exhibit 6.

20

77. The Secretary included in the scope of the FEIR the following
requirement: "I note the many comments from municipalities expressing concern with
the project's traffic impacts on development and infrastructure plans underway in Boston,
Somerville, and Medford. These concerns are shared by MassDOT and the [Metropolitan

Area Plalming Commission ("MAPC")] and I expect the Proponent will work with
MassDOT, the sun'ounding cities, and MAPC on both short-term and long-term solutions
to address the project's impacts while supporting municipal redevelopment visions,
roadway design plans, and improved regional connections." Exhibit 6 at 28.
78. The Secretary also required that the FEIR include a "consensus" with
Boston "regarding jurisdictional issues and the feasibility of proposed improvements" to

the City of Boston Roads. Exhibit 6 at 29.

79. On June 30, 2015, Wynn filed its FEIR with the Secretary. The FEIR
projected roughly equivalent peal: hour vehicle trips as the DEIR, once again with the
overwhelming majority of those trips traveling tba'ough the City of Boston Roads.
80. Without explanation or justification, the FEIR now stated that "the
projected mode share for patrons on the water shuttle was increased to 6% from the 3%

that was shown in the DEIR." The mode share attributed to MBTA subway riders
connecting via a fixed-route shuttle bus ride to the Wynn Proposed Casino remained at

10% in the FEIR.

81. Wynn included a mere four sentences out of its 1,227 pages of narrative to
its proposed mitigation to the impacts on the City of Boston Roads. In relevant pa:,

Wynn proposed that an unidentified party "reconstruct Cambridge Street between its
intersection with Ramp C-L and its intersection with Sullivan Square/Mafia Way."

21

Wynn then proposed to "upgrade the traffic signal equipment at the intersections of 1-93

Off-ramp (Ramp C-L) and Mafia Way and "install new traffic signals at the intersection
of Spice Street/MBTA Busway/Cambridge Street and Mafia Way/MBTA Busway."
82. Wynn's FEIR addressed none of the comments provided by Boston on
Wynn's prior MEPA filings, nor the Secretary's requirement that Wynn reach consensus
with the City on mitigation plans for both short- and long-term time horizons compatible
with Boston's "roadway design plans."

83. Again, Boston filed public comments on the Wynn FEIR. The City's
comments included, among others, that: (1) the proposed resox development was

incompatible with the City's plans for Sullivan Square and Rutherford Avenue; (2)
Wynn's proposal to add 12,000 vehicle trips per day through Sullivan Square was in
direct conflict with the City's plan to deemphasize vehicular travel and promote
alternative travel modes in this area; (3) the FEIR failed to address this issue or offer any
plan for resolving the conflict between the City's plans and Wynn's; (4) the FEIR failed
to analyze the projected future roadway conditions under the City's plans and offered
mitigation only under the existing roadway system; and (5) the traffic mitigation "plans"
submitted for the existing roadway system were inadequate and were developed without
prior consultation with the Boston Transportation Department. A true and accurate copy

of the City of Boston's comments on the FEIR are attached as Exhibit 7.

84. On August 15, 2014, the Secretary issued a celificate on Wynn's FEIR,

finding that it "does not adequately and properly comply with MEPA and its
implementing regulations." A true and accurate copy of the CexOfificate on the FEIR is

attached as Exhibit 8.

22

85. The Secretary concluded that the FEIR's traffic projections were flawed
and required new analysis with a more acceptable methodology. Exhibit 8 at 33-34.

86. The Secretary concluded that the FEIR provided no meaningful mitigation
measures to address the tens of thousands of Proposed Casino-bound vehicles trips in
Sullivan Square and the Rutherford Avenue corridor and required Wynn, once again, to

provide detailed infrastructure improvement plans and analysis of their compatibility with
the City of Boston's objectives. The Secretary wrote:
The City has expressed serious concerns regarding the project's impact on

traffic in Sullivan Square and along the Rutherford Avenue Corridor. The
SFEIR should document the relationship between the project's proposed
mitigation and the plans for Rutherford Avenue. It should also identify
whether interim improvements in Sullivan Square would impact the
feasibility or cost of proposed design of Sullivan Square. I expect the
Proponent will continue to work with MassDOT, the surrounding cities, and
MAPC on both short-term and long-term solutions to address the project's
impacts while supporting municipal redevelopment visions, roadway
design plans, and improved regional connections.

The SFEIR should include sufficiently detailed conceptual plans (preferably

80-scale) for all newly proposed roadway improvements to verify the

feasibility of constructing such improvements. The conceptual plans should

clearly show proposed lane widths and offsets, layout lines, road

jurisdictions, and the land uses (including access drives) adjacent to areas
where improvements are proposed so that the feasibility of constructing the
proposed improvements can be addressed.

Exhibit 8.
87. Although Wynn ignored the City's comments for more than two years, the
project continued to advance through the MEPA process.

G.

THE MGC'S UNLAWFUL DELEGATION

88. Less than one month after the Secretary published findings on the

inadequacy of Wynn's environmental filings, on September 16 and 17, 2015, the MGC
voted to detenuine to award the gaming license for the eastern Massachusetts region

23

("Region A") to Wynn at a future date.

89. The MGC's vote ignored its own findings regarding Wynn's mitigation of
traffic and environmental impacts, and the mandates of the Gaming Act that applicants
provide complete and adequate plans for such mitigation. The MGC's own technical

evaluation of the Wynn application concluded that:

At Sullivan Square, however, the Applicant's proposed mitigation does not
adequately ad&ess the existing operational issues nor the impacts from
additional Proposed Casino-related traffic volumes expected to be using the
roadway network. The Applicant is projecting that approximately two-

thirds of site traffic is expected to travel through Sullivan Square, and thus
the area is critical for traffic traveling to and from the project

The analysis of the proposed mitigation is viewed as deficient and the

overall mitigation at Sullivan Square is incomplete.
90. Finding that Wynn's application was "deficient" and "incomplete," the

MGC's evaluators stated that Wynn would be required to solve the problem of its
incompatibility with the City Plan. The MGC explained:
The City of Boston has conducted a series of planning efforts over the past
15 plus years to determine a preferred alternative for a long-term solution
at Sullivan Square ... the Applicant's current mitigation plans did not
include any discussion of a collaborative process between the Applicant and
the City of Boston, and various other interested parties that would need to
occur in order to move the process folard in determining a prefelTed longterm solution, and design and construction of that preferred solution. The
Applicant has not committed be engaged in that process, nor has the

Applicant committed any fimds for a portion of future planning, design, or

construction of a long-term solution at Sullivan Square .... Furthermore,

the Applicant also has not identified any possible short-term improvements
that could be implemented at the Sullivan Square rotary intersections with
Rutherford Ave, Main Street, or Alford Street.

91. The MGC graded Wynn's mitigation proposals in its application as

"insufficient." It also determined that the architectural design was unappealing, strongly

24

urging Wynn to redesign the project.

92. The MGC should have rejected Wynn's application for failure to meet a
statutory prerequisite. Instead, it delegated the traffic mitigation analysis required by the
Gaming Act to the Secretary by imposing the following condition on Wynn's license:
Wynn shall complete all mitigation, including traffic mitigation, required
pursuant to the MEPA process for the Project and subsequent permitting
including but not limited to the measures concerning impacts identified in
the Secretary's celofificate, the FEIR dated June 30, 2014, the future SFEIR
and the Secretary's certificate for the SFEIR and shall be responsible for all
costs associated with such mitigation.
Agreement to Award the Category 1 License in Region to Wynn MA, LLC, Summary of

Conditions, 3(1), a true and accurate copy of which is attached as Exhibit 9.

93. There is no attthority, statutory or otherwise, that allows a state agency to

delegate responsibilities of its enabling statute made mandatory by the Legislature to an

unrelated agency without commensurate organic authority.
94. Consequently, the Secretary has not, and will not, determine the specific

mitigation that the Gaming Act requires for Wyrm's Project. Nor has the MGC.
95. The MGC also required, as a condition of Wynn's gaming license, that
Wynn contribute $25 million toward construction of a "long term traffic plan" for
Sullivan Square and the Rutherford Avenue con'idor, but only if Boston abandoned the
City Plan and adopted an entirely new plan that accommodates increased Proposed

Casino traffic. Exhibit 9 at 4.

96. On September 17, 2015, the MGC executed an Agreement to award Wynn
the Region A gaming license on November 7, 2015, even though the statutorily-required
mitigation and the entire design of the Project were left unwritten and unclear.

97. A gaming license is a "Permit" as that term is defined in MEPA and its

25

regulations, and the MGC has acknowledged as such in its regulations. 205 CMR 120.
98.

The MGC has determined that the license is "conditional" pursuant to its

regulation at 205 CMR 120 and MEPA regulations. In certain instances, MEPA
regulations permit an Agency to take interim action on a Project provided that it restricts
the effects of such action fi'om taking place "unless and until the Secretary has

determined that [the EIR] is adequate and 60 Days have elapsed." 301 CMR 11.02(2)(c).
99. While in some instances "Agency Action" may be conditional on the
Secretary's determination that an EIR is adequate, the Project in such cases must be

sufficiently defined (and subject to far fewer post-Action deviations than here) to ensure
that Agencies may effectively analyze the Project through the MEPA process.
100. The MGC licensed a Project without a design or defined mitigation. In
essence, the MGC licensed an operator rather than a project. The project later changed
materially in fundamental respects following licensure.
101. In reality, the gaming license awarded to Wyrm was not remotely
conditional. On November 7, 2015, the effective date of the so-called "conditional"
license, Wynn paid a non-refundable $85,000,000 licensing fee to the Commonwealth.
On information and belief, Wynn then secured a bond in an amount proportional to the
total capital investment proposed for the Proposed Casino and executed an Agreement to
accrue more than $1.2 billion in debt financing for the Proposed Casino. On infolrnation
and belief, Wynn hired personnel, solicited proposals for contractors to work on elements
of the Proposed Casino, and held several job fairs.
102. Further, the award of the license to Wynn changed the rigor of the review
that state and municipal agencies applied to Wynn's proposals ttn'ough the remainder of

26

the MEPA process because they viewed the construction of the Proposed Casino as a
foregone conclusion.

H.

POST-LICENSURE MEPA FILINGS

103. On February 17, 2015, Wynn submitted its SFEIR to the Secretary. The

SFEIR introduced numerous material changes to the Project. In keeping with the MGC's
instruction, Wynn provided schematic designs, plans, and renderings for a wholesale

redesign of the Proposed Casino and Hotel Tower. Wynn did not file a Notice of Project
Change for this vastly different Project, as required by MEPA regulations.
104. The new Proposed Casino Project now featured 4,580 gaming positions,

compared to 4,160 in the FEIR. Wynn's MEPA filings acknowledge that gaming
positions are the primary driver of traffic to casinos, more than any other feature.

105. Additionally, the Proposed Casino now would include 629 hotel rooms
(compared to 504 in the FEIR), 3,400 parking spaces (compared to 3,700 in the FEIR),
while certain non-gaming entertainment, retail, and food and beverage space would be

eliminated. Additionally, connectivity from the public indoor space the Proposed
Casino's outdoor open m'eas would no longer be at the same grade; instead, the open

space and public areas would be on different elevations and building floors.
106. The SFEIR projected approximately 25,000 vehicle trips at peak travel
times, and continued to project modes share at the same levels as the FEIR (10% on the
MBTA, and 6% on water transportation).
107. The SFEIR proposed several new improvements in Sullivan Square,
including modifications to additional intersections. However, these traffic improvements
required:

(a)

the continued maintenance of and funding for the Tunnel (rather

27

than its elimination as called for in the City Plan);

(b) modifications from the City's plan to introduce a traditional
street-ga'id in Sullivan Square; and

(c) the addition of substantial vehicle capacity (thus increasing, not

decreasing traffic).
108. Boston provided extensive comments on the SFEIR and an engineering

analysis of the mitigation proposal offered by Wynn in the SFEIR. A true and accurate
copy of Boston's comments is attached as Exhibit 10.
109. After a detailed technical review, the City commented that Wynn's
proposal was "inconsistent with and antithetical to the City's planned use of its streets in
Charlestown" because it "proposes a dramatic increase--rather than decrease--in traffic

in Sullivan Square." Exhibit 10 at 1. The City's analysis concluded that "Wynn's plan
also would jeopardize the health, safety, and welfare of Boston's citizens" and that the

City would be forced to deny permits for the plan proposed in the SFEIR. Exhibit 10 at
1. The City concluded that Wynn's proposed mitigation would actually make matters
worse; causing "spillback effects from the new signals that will only worsen traffic
conditions." Exhibit 10 at 3.

110. The City also pointed out that Wym's plans required right of way
acquisitions from other palsies, but that Wynn had not identified plans to complete those
transactions nor provided an analysis of the impacts. Exhibit 10 at 3. Among many other

flaws in the proposal, the City observed that Wynn's own analysis projected vehicle
back-ups onto the Interstate 93 mainline, beyond the off-ramp, on Friday afternoon peak
times, creating a commuting nightmare for the general public.
111. The City's comments and technical review concluded that: "MEPA must

recognize that the issues we have identified are not minor design details that can be

28

deferred until later in the project entitlement process. They are issues of feasibility,

viability, and compatibility, which by your own policies [the FEIR Celificate] must be
addressed before releasing the project from the MEPA process, and, we believe, should
have been resolved before granting the gaming license to the Proponent." Exhibit 10 at
2.

112. Lastly, the City noted that by Wynn's own methodology, the parking
spaces necessary at similar urban resort casinos--at similar distance from mass transit--

were determined to be 1.01 spaces per gaming position. With the increase of hundreds of

gaming positions in the SFEIR, Wynn should have accounted for 4,626 parldng spaces
according to its own analysis, yet inexplicably decreased parking to 3,400 spaces. The

City of Boston predicted that this excess parking demand will log-jam City streets.
Exhibit 10 at 5.
113. On April 3, 2015, the Secretary issued a Certificate on Wynn's SFEIR
concluding that it did "not adequately and properly comply" MEPA and its implementing
regulations. A true and accurate copy of the Certificate on the SFEIR is attached as

Exhibit 11. The Secretary provided a scope for the SSFEIR, which required Wynn to
"establish a process for integrating the City's long-term plans for Sullivan Square and

Rutherford Avenue and the impacts of Proposed Casino traffic." Exhibit 11 at 34.
114. Wynn submitted its SSFEIR to the Secretary on July 15, 2015. A true and
accurate copy of the relevant excerpts of the SSFEIR is attached as Exhibit 12.
115. For the fourth time, the SSFEIR included no proposal to integrate the City
Plan into its (inadequate) proposal for mitigation of the Proposed Casino's traffic impacts
on Sullivan Square and the Rutherford Avenue corridor. The SSFEIR ignored the

29

Gaming Act's requirement that "projects to account for traffic mitigation as detelrnined

by the commission, shall be completed before the ganfing establishment shall be

approved for opening by the commission." G.L.c. 23K, 10(c).

116. The SSFEIR traffic projections do not provide sufficient data for MEPA to
make a determination that Wynn will have complied with this provision of the Gaming
Act. Nor is there sufficient data in the SFEIR for the MGC to issue its required Section
61 findings that Wynn has taken all steps to avoid or minimize damage to the
environment.

117. Wyxm used a flawed test to determine whether mitigation is necessary at a

given intersection. It reviewed whether the level of service degrades based on a 2023

projection of traffic conditions without the Project (No-Build), compared to the 2023
projection that assumes that the Project is built (Build (2023) with Mitigation) with the
proposed mitigation.

118. The Build 2023 Condition that the Proponent studied will be reached five
years after Opening, while G.L.c. 23K, 10(c) requires complete mitigation at the time
of Opening (2018). Even assuming the empirical validity of the Proponent' s traffic
projections, a comparison between the 2013/14 Existing Conditions to the Build (2023)
with Mitigation Condition studied in the SSFEIR and SFEIR shows significant
degradation of traffic conditions at critical intersections.

119. Notwithstanding the repeated flaws of Wynn's MEPA filings, the

Secretary issued a certificate on August 28, 2015 finding that the SSFEIR "adequately
and properly complies" with MEPA and its regulations. A true and accurate copy of the

SSFEIR Celificate is attached as Exhibit 13.

30

120. The SSFEIR Certificate, did not, however, conclude that Wynn's proposed
mitigation for Sullivan was adequate. Rather, the Secretary required that MassDOT

publish Section 61 Findings in the Environmental Monitor and accept public comments.
Exhibit 13 at 3. MassDOT's Section 61 Findings must "address and resolve" the

"feasibility and constructability of proposed improvements for Sullivan Square, including

control of necessary right-of-way, carefully review intersection improvements around and

within Sullivan Square to minimize queuing and confirm that vehicular storage capacity
is adequate, and evaluate safety of proposed right-on-red traffic movements." Exhibit 13
at3.

121. Additionally, the SSFEIR Certificate requires the MGC to hire a

consultant to "make a public presentation at a MGC meeting and provide

recommendations regarding additional conditions that should be added to the draft

Section 61 Findings." Exhibit 13 at 3-4. The MGC then must solicit written comments
on the draft Section 61 Findings and hold a public hearing. The MGC's Final Section 61
Findings must be incorporated as a condition of Wyrm's gaming license.

122. On September 10, 2015, Boston filed its Notice of Intent to Challenge the
Secretary's decision pursuant to G.L.c. 30, 62H and 301 CMR 11.14. A true and

accurate copy of the Notice of Intent is attached as Exhibit 14.

I.

WYNN'S ACCESS PROBLEMS

123. As early as the EENF (and in all subsequent comments to Wynn's MEPA

filings), the Boston commented that the only access to the Wynn Parcel is via Horizon
Way, which is comprised of public (Alford Street in the City of Boston) and private land
located in both Boston and Everett.

124. The City of Boston Zoning Ordinance prohibits the use of any land in

31

Boston for access to the Proposed Casino. In addition, the use of a Boston roadway for
the Proposed Casino's access provided Boston with significant regulatory rights under
the Gaming Act and other statutes that Wynn has sought to avoid.
125. The fire and police chiefs of Everett also have determined that secondary
access to the Wynn Parcel, potentially via some polion of the land owned by the MBTA,

is "critical to providing adequate and necessary public safety to the [Wynn Parcel]"
(emphasis in original). They have concluded "It is imperative that such public safety
concerns be addressed as soon as possible to avoid a potentially catastrophic occurrence
on the CUlTent planned site." A true and accurate copy of this Letter is attached as Exhibit
15.

126. On information and belief, Wynn also required a secondary point to the
Wynn Parcel for tractor trailers, service vehicles, shuttle buses, and other commercial
vehicles. It would be impractical for those larger commercial vehicles to share a point of
access with patrons.

127. Therefore, beginning early in the planning for the Proposed Casino, Wynn
alluded, in vague detail, to two separate plans:
(a) A plan to acquire certain parcels from private parties to
reconstruct the Wynn Parcel's primary access via Horizon Way

to avoid any use of land within the City of Boston.

(b) A plan to acquire celain parcels of land from the MBTA and at
least one private party to construct a secondary access road to the
Wynn Parcel for emergency and commercial vehicles selwicing
the Proposed Casino.

J.

THE WYNN-MBTA LAND DEAL FOR SECONDARY ACCESS

128. The MBTA owns a large tract of land in the City of Everett known as the

Everett Shops Parcel (the "Everett Shops"). The Everett Shops is adjacent to the site for

32

the Proposed Casino.

129. The Everett Shops Parcel is the primary and single most important
location to MBTA bus and subway operations. It is at the Everett Shops that the MBTA:
(a) services and repairs buses and rail cars;

(b) makes parts for MBTA rail cars and buses;

(c) stores out-of-service buses and rail cars; and

(d) houses materials and equipment the MBTA uses to operate and
maintain its fleet of trains and buses.

130. The MBTA's activities on the Everett Shops are essential to the MBTA's
operations.

131. In or around the beginning of January of 2013, Wynn and the MBTA
began meeting in private to discuss Wynn's acquisition of the Everett Shops. At a

meeting on January 16, 2013, MBTA officials instlaacted Wynn that open space on the
Everett Shops site was critical to operations.

132. In April of 2013, MBTA Operations objected to the sale of any part of the
Everett Shops to Wynn due to the adverse impacts on the MBTA's maintenance and
repair operations:
Operations does not suppol giving up any propelS3, on the Everett campus.
Even in this revised plan, we will still lose critical bus storage area. In
addition, if you recall, the green line extension program required the closing

of the Water St. tire facility this spring. The permanent location for the
entire tire shop operations is planned to be on the Everett campus. If this

land acquisition goes through, we will be required to give up much needed

garage maintenance bay space at another bus maintenance facility for this
important function.

Operations requests that the Authority "stand firm" in its position with the
City of Everett.

133. In late 2013, Wynn and the MBTA continued their discussions regarding

33

the MBTA's possible sharing of access to the Everett Shops with Wynn for its secondary
emergency and service vehicle entrance. They also discussed Wynn's possible
acquisition of land to reconstruct the MBTA's entrance from Broadway to the Everett
Shops.

134. At that time, in an internal e-mail, the MBTA's Chief Mechanical Officer
again strongly objected to the conveyance of land to Wylm, concluding that it would
interfere with MBTA operations and create dangerous conditions at the Everett Shops:
The Authority now gets no real benefit from this proposal, cash does not
benefit us in Operations. There is an unsafe condition that is created at the
back corner of the property with this proposal. I am sure we will be
overruled, but that is our opinion.

135. On August 13, 2014, the MBTA convened another meeting to discuss the
Wynn proposal, and noted that no analysis had been provided by Wynn to determine the
extent of the detrimental impacts of sharing access to the Everett Shops with the
Proposed Casino. However, the MBTA raised significant concern over at least two
issues. The meeting notes state that: "[Wynn] should address frequency of shuttles,
dwell time, and how that interacts with MBTA" and "How will intersection of alternative

driveway and MBTA yard be controlled? Need data on trip generation from shifts at

136. On August 15, 2014, MassDOT provided a comment letter on Wynn's

FEIR. The letter stated that Wynn must be required by the Secretary to provide further
information and analysis in a SFEIR so that the MBTA could first "determine whether o1'
not this proposal would adversely affect critical transit operations" at its maintenance and
operations facility." This analysis was required before the Land Transfer could occur

under 301 CMR 11.12(4)(a), but still has not occurred.

34

137. The Secretary issued a certificate on August 15, 2014 concluding that
Wynn's FEIR did not adequately and properly comply with the MEPA statute.
138. Eleven days later, on August 26, 2014, the MBTA signed an agreement to

sell the Everett Shops land to Wynn for $6,000,000.

139. Wynn filed its SFEIR on February 17, 2015 with the Secretary.
140. On or about February 26, 2015, MassDOT and the MBTA executed and
delivered to Wynn a deed with respect to three parcels of land totaling approximately
1.758 acres (the "MBTA Parcels").

141. The transaction constituted a Land Transfer subject to MEPA that could
not occur until the Secretary issued a certification that Wynn's EIR adequately and

properly complied with MEPA. 301 CMR 11.12(4)(a). Thus, Wynn and the MBTA
violated MEPA.
142. The Secretary's April 3, 2015 Celificate on Wynn's SFEIR concluded
that the SFEiR did not adequately and properly comply with MEPA. A true and accurate
copy of the Secretary' s Certificate on Wynn's SFEIR dated April 3, 2015 is attached as
Exhibit 11. The Secretary stated that "... the MBTA and the Proponent completed a
Land Transfer necessary to support the construction of access to the project site.

MassDOT has acknowledged that the conveyance of the land to the Proponent prior to
the conclusion of the MEPA process is a violation of the MEPA statute. Therefore,

MassDOT and the Proponent must file an SSFEIR to develop appropriate remedies to
satisfy the above-mentioned issues."

143. The Secretary's Certificate required, as did MassDOT's August 15, 2014
comment letter, that before any Land Transfer could occur Wynn and MBTA analyze the

35

impacts of the Land Transfer on MBTA operations and use of the Everett Shops Facility.
144. Wynn and the MBTA executed an "Escrow Agreement" that places the
Deed to the Everett Shops parcels with a private escrow agent at least until the Secretary

certified the SSFEIR and 60 days elapsed from the notice of availability of the SSFEIR in
the Environmental Monitor. The Escrow Agreement does not void the prior conveyance
of the Everett Shops parcels to Wynn. Wynn always has remained the record owner of

the Everett Shops parcels in the Registry of Deeds.

K.

IMPACTS TO MBTA OPERATIONS

145. The SSFEIR concluded that the Land Transfer would have no impact on

MBTA Operations and would not impede the MBTA's intended use of the Everett Shops.
The Secretary certified this analysis.
146. However, the Land Transfer stands to substantially and adversely impact

MBTA operations in at least the following ways:

(a)

the loss of "critical bus storage area";

(b)

the inability of the Everett Shops to accommodate the relocation

of the MBTA's Water Street tire facility that is displaced by the
Green Line Extension, which will cause the loss of garage
maintenance bay space at the Everett Shops or other MBTA

properties;

(c)

the loss of numerous employee parldng spaces that will need to

be made up elsewhere on the Everett Shops property and cause
further loss of maintenance and repair space;

(d)

the inability of trailers towing disabled buses to make turning

movements in certain areas of the property;

(e)

the loss of access for larger vehicles to several cmTently used

loading docks at the Everett Shops property;

(0

an unsafe condition that is created at the back corner of the

Everett Shops property;

36

(g)

the ability of critical MBTA maintenance and operations vehicles

to timely access the Everett Shops where access is tba'ough a
controlled intersection with Wynn's secondary access point;

(h)

the dangerous and disruptive conflicts of emergency vehicles

(which by their nature must overtake MBTA maintenance

vehicles) and Everett Shops traffic;

(i)

the dangerous and disruptive conflicts of Wynn resort shuttle

buses, delivery vehicles and other traffic and MBTA

maintenance vehicles, including wait times needed for Everett
Shops traffic, queues, and safety conditions;

(J)

the controlled nature of the Everett Shops' new access driveway,

which before was uncontrolled and exclusively for the use of

MBTA vehicles; and

(k) the ability of Wynn to use the MBTA's current entrance before a
replacement is constructed is also provided by Agreement.
147. None of these impacts are analyzed, or even addressed, in Wynn's

SSFEIR despite the Secretary's SFEIR Certificate requiring such analysis. Nevertheless,
the Secretary certified the SSFEIR.

LEGAL CLAIM
COUNT 1: DECLARATORY JUDGMENT
(Wynn's Final Environmental Impact Report
Fails to Comply with G.L.c. 30, 61 to 62G)
148. The City of Boston realleges and incorporates by reference the allegations

contained in paragraphs 1 through 147 of this Complaint.

149. This Com is authorized to issue binding declarations of the rights, duties,
status, and other legal relations of parties under statutes and administrative regulations,
including determinations of questions of construction or validity, in any case in which an
actual controversy has arisen. G.L.c. 231A, 1 and 2.
150. This Court also is empowered to issue binding declarations under G.L.

c. 231A, 1 and 2 to enjoin and determine the legality of the administrative practices

37

and procedures of any state agency alleged to be in violation of the laws of the
Commonwealth of Massachusetts.
151. An actual controversy has arisen between the City of Boston and Wynn
regarding whether the Secretary's Certificates on Wyml's environmental impact reports
violate MEPA and its implementing regulations, and are thus invalid.
152. Pursuant to G.L.c. 214, 7A, this Court may determine whether damage
to the environment is OCCUlTing or is about to occur and may restrain the person causing
and about to cause such damage if the damage constitutes a violation of a statute or
regulation, the major purpose of which is to prevent or minimize damage to the
environment.

153. The major purpose of G.L.c. 30, 61-62I and its implementing
regulations is to prevent and minimize damage to the environment.

154. Wynn, as the Project Proponent, violated MEPA and its implementing
regulations by:

(a)

failing to provide plans for adequate mitigation of Sullivan

Square and the Rutherford Avenue corridor in conformity with
the Secretary's Certificates on the EENF, DEIR, FEIR and

SFEIR;

(b)

failing to provide an adequate disclosure of impacts;

(c)

failing to identify necessary land acquisitions for the Project and

analyze the impacts;

(d)

failing to identify required Agency Actions for the Project and

analyze the impacts;

(e)

failing to use generally methodology for calculating traffic

projections; parldng storage, trip distribution and transportation
mode share;

(f)

failing to use a methodology for calculating traffic projections

that enables the Secretary and the MGC to determine compliance

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with G.L.c. 23K, 10(c), requiring complete mitigation by

Opening of the Proposed Casino;
(g) failing to provide meaningful response to comments; and

(h) failing to comply with the Secretary's Certificates.

155. The Secretary's Certificates that Wynn's environmental impact repols

adequately and properly comply with MEPA, are invalid. They violate MEPA and its
implementing regulations because:

(a)

they failed to ensure that all feasible measures have been taken to
avoid or minimize damage to the environment caused by Wynn's
proposed casino;

(b) Wynn's analysis of interim Sullivan Square Plan remained

inadequate;

(c)

the MGC, as the lead permitting authority, failed to comply with

its own permitting and licensing requirements by delegating
determination of mitigation required by G.L.c. 23K, 10(c),

15(a)(6), 18(8) & 18(14)) to MEPA;

(d)

they required MassDOT to further "demonstrate feasibility and

constructability" of Wynn's plans and "confirm that vehicular

storage capacity is adequate" instead of requiring Wynn to file a

supplemental EIR;
(e) they ignored the demonstrated incompatibility of Wynn's
mitigation with City's plan; and
they refused to acknowledge and address that the City of Boston,
and not MassDOT, regional stakeholders, the MGC, or any other

agency or entity, is the sole lawful permitting authority for

roadways and infrastructure in Sullivan Square and the

Rutherford Avenue corridor and has the sole responsibility for

the safety and maintenance of the those roadways and assets.
156. The Secretary's Celificates on Wynn's environmental impact reports
were unsupported by substantial evidence, arbitrary and capricious, an abuse of
discretion, and othelise not in accordance with law.
157. Pursuant to G.L.c. 231A, 1 and 2, it is appropriate for this Court to

39

issue a binding declaration regarding the validity of the Secretary's Certificates on

Wyml's Proposed Casino.

158. As a result of the Secretary's Certificates, Wynn is about to cause damage

to the environment under G.L.c. 214, 7A for reasons that include, but are not limited

to, the matters set folh in the Notice of Intent attached as Exhibit 14 and incorporated by
reference herein.

PRAYERS FOR RELIEF

WHEREFORE, the City of Boston respectfully requests that the Court:
1.

As to Count 1, enter a declaratory judgment that the Secretary's

Certificates on Wynn's environmental impact reports are invalid under G.L.c. 30, 6162I and its implementing regulations, and restrain Wynn from causing damage to the
environment; and
2.

Grant the City of Boston such other and fresher relief as may be just and

proper,

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DEMAND FOR JURY TRIAL

Plaintiff City of Boston demands a trial by jury on all issues and claims so triable.
Respectfully submitted,

CITY OF BOSTON
Eugene L. O'Flaherty
Corporation Counsel
By its attorneys,

:]omas C. Frongiil,, BBO,2(Io. 180690

Ariel I. Raphael, BBO No. 670788
Caroline K. Simons, BBO No. 680827
FISH & RICHARDSON P.C.
One Marina Park Drive
Boston, Massachusetts 02210

Tel: (617) 542-5070

frongillo@fr.com
raphael@fr.com
simons@fr.com

DATED: September 28, 2015

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