The developer of the former Boston Regional Medical Center in Stoneham could be forced back to the drawing board if a Superior Court judge rules that an agreement between the developer and the Department of Conservation and Recreation (DCR) violates Massachusetts’ environmental laws.

The Supreme Judicial Court yesterday sent the case, Ten Persons of the Commonwealth v. Fellsway Development, back to Superior Court to resolve the issue of a Memorandum of Understanding (MOU) between DCR and developer The Gutierrez Co. The MOU said the real estate firm would not need a state permit to alter a road within the 2,575-acre Middlesex Fells Reservation if the developer put $1.8 million in an escrow account to be used by DCR.

The MOU is at the heart of the case, brought against the state and the developer by area residents and the city of Medford concerned with the impact the 225,000-square-foot, mixed-use, commercial/residential project would have if built in the middle of the state nature preserve.

The MOU was struck after the developer scaled back the project to decrease traffic expected to be generated by the project after the Secretary of Environmental Affairs’ office said earlier proposals did not comply with the Massachusetts Environmental Policy Act (MEPA). Original plans proposed altering the parkways to accommodate new traffic and comply with safety standards set by the DCR, which would have triggered MEPA oversight.

The developers were trying to avoid that review because it would have dictated how much the roadway could be altered, if at all.

Gutierrez wrote a letter to the Secretary of Environmental Affairs’ office in 2007 to say it was not planning to alter the parkways, to which the secretary responded saying the developer would be causing the state to make those changes – a position contrary to DCR’s visioning process for the historic parkways, which called for reducing the amount of traffic already in the park.

But DCR and the developer later entered into the MOU that declared the project no longer required a DCR permit or financial assistance for roadway work as long as $1.8 million was paid to DCR. That money was to be used within three years to implement its transportation safety improvement plan, which would have involved reducing Woodland Road to two lanes from four, and providing roadway alterations to mitigate traffic increases from the project. The Secretary of Environmental Affairs’ office signed off on that agreement, saying they were no longer subject to environmental review under MEPA.

But MEPA language specifically cites that, under anti-segmentation regulations, the proponent of a private project and any participating agency "may not phase or segment a project to evade, defer or curtail MEPA review."

"Why would you need an MOU to get [$1.8 million] from the developers if there wasn’t a connection between those two activities," which violates MEPA, asked Barry Fogel, an environmental attorney with Boston-based law firm Keegan Werlin, representing the plaintiffs. "Our view is that taken together, they create a common plan, and not a separate undertaking as described in MEPA’s regulations. DCR, with the developer’s money, is going to implement parkway changes to accommodate the developers’ new traffic. In our view, that’s clearly a common undertaking."

Greg Peterson, an attorney with Boston law firm Tarlow, Breed, Hart & Rodgers, representing the developer, said DCR has wanted to do this roadwork on its own for a long time.

"DCR has wanted to take the four-lane highway and return it to a two-lane, lower speed parkway," he said. "The mere fact that people reach this private property over the parkways is kind of irrelevant. It’s DCR’s job to make sure this is a safe, beautiful park for the public. The trails come out of the woods down a very steep rocky embankment straight into traffic lanes. There isn’t even a shoulder between drivers and hikers coming out the woods right now. This is not segmentation of a private project, but two separate projects."

No date is set for the case to be reopened in Superior Court.