If you think land use is simple, read Beverly Port Marina, Inc. v. Department of Environmental Protection — not just the recent Appeals Court decision but the underlying agency decision.  What’s so difficult?  Begin with a smorgasbord of government laws and programs:  Chapter 91, the Coastal Zone Management Plan, procurement law, the urban self-help program, Article 97 of the Massachusetts Constitution.  After you’ve had your fill, throw in the dessert:  capitalism.  At its heart, Beverly Port Marina concerns the extent to which governmental programs (not just one, but many) determine which development proposals stay on the serving table, and which go in the garbage can.I'll drink to that.jpg 

The setting is Glover’s Wharf in Beverly.  Glover’s Wharf lies within a Designated Port Area (DPA) established in 1978.  It also lies seaward of the historic high water mark.  In other words, it’s within the jurisdiction of Chapter 91, the Public Waterfront Act.  In 1996, the city, aided by a grant from the Division of Conservation Services (DCS) urban self-help program, bought Glover’s Wharf.  The grant required the city to execute a project agreement with DCS.  The agreement described the city’s plan to lease a building for use as a restaurant, to maintain public boat slips, and to provide public parking.  The agreement acknowledged that the land was subject to Article 97, which requires a two-thirds vote of the Legislature before lands acquired for park (or similar) purposes can be put to a different use.

In 2006, the city issued a Request for Proposals (RFP) pursuant to the procurement law, M.G.L. c. 30B.  The RFP sought proposals for a 20- to 40-year ground lease to redevelop Glover’s Wharf for restaurant and conservation/recreation uses.  The “Black Cow” restaurant chain proposed a 40-year ground lease for a two-story building with a 362-seat restaurant, as well as parking for the restaurant and existing marina slips.  It also suggested that the DPA be rescinded.  The city went with the Black Cow proposal and, within two years, applied to the state Department of Environmental Protection (DEP) for Chapter 91 license. Instead of trying to rescind the DPA, the city proposed water-dependent industrial uses, including commercial passenger vessel service, for the first floor of the proposed building.

In response to the Chapter 91 application, Beverly Port Marina, Inc. (BPM) proposed a “competing project” pursuant to 310 CMR 9.36(5)(a).  That regulation prevents DEP from licensing nonwater-dependent or non-industrial uses within a DPA where it determines that the tidelands “are necessary to accommodate a competing party who intends to develop such tidelands” for water-dependent industrial use.  The competing party must show that its project promotes water-dependent-industrial use to a greater degree than the project proposed in the license application; must prepare development plans for its project, including a feasibility study; and must offer to purchase title or other rights to the tidelands in question at fair market value.  BPM’s proposal was for a 40-year ground lease that would net the city $400,000 over the Black Cow proposal.  It would use the land for a boatyard, boat repairs, and recreational uses in the existing building, and would use of the adjacent pier for commercial fishing, a research vessel, and recreational boating.

DEP granted the city a Chapter 91 license for the Black Cow proposal.  BPM appealed.  On appeal, DEP’s regional office changed its tune in favor of BPM.  Nonetheless, DEP’s presiding officer, and ultimately its commissioner, granted the city a license for the Black Cow proposal on grounds that BPM did not show that its proposal was feasible because it did not or could not meet various governmental requirements — namely, it did not show (adequately) that its proposal was allowed under DCS’s project agreement, that the city would lease the land to BPM, or that the project satisfied Article 97.  The superior court upheld DEP’s decision.  The Appeals Court did not.

In reaching its contrary conclusion, the Appeals Court breathed life into an oft-cited but usually ineffectual principle:  although an agency is owed deference, a court must not abdicate its responsibility to determine the meaning of a regulation as a matter of law.  The court held that the “competing project” regulation does not require a proponent to establish conclusively that it will obtain all permits and approvals for its project.  But the court went one step further.  It noted that DEP’s review of a Chapter 91 license application “ought not inquire into the applicant’s acquisition of other permits necessary for the project.”  Logically, the same could be said about any review by a permitting agency.

In a free-market economy, government should not determine which projects succeed and which fail.  Of course, in some ways government does this all the time.  A decision to grant or deny a permit determines if a project succeeds or fails.  So do decisions to provide (or not provide) subsidies like tax credits, grants, and so on.  But the Beverly Port Marina situation is different.  If DEP’s decision were upheld, it would have set a precedent whereby one government agency could base its permitting decision on what it thinks another government agency would do.  Whatever deference is owed to an agency, it does not extend to reading tea leaves or divining the meaning of cracks in a tortoise shell. As for Article 97 or any other legislative act, the Fates themselves cannot foretell what the Legislature will do.


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Jeffrey R. Lacy, AICP, is a Regional Planner with the Massachusetts Department of Conservation and Recreation’s Division of Water Supply Protection.  More importantly for present purposes, Jeff is also a co-drafter of House Bill No. 1859 (pdf), “An Act Promoting the Planning and Development of Sustainable Communities,” which is presently before the Joint Committee on Municipalities and Regional Government.  As I noted in my posts of earlier this summer (one of which Jeff rightly described as “ominous“), H.1859 is a far-reaching bill which, if enacted in anything resembling its current form, will fundamentally transform the practice of land use law in the Commonwealth.

In response to my entreaty for a spirited dialogue on this important bill, Jeff has provided two documents to kick things off.  The first one is a section-by-section summary of what, exactly, the bill will do, with cross-references to existing laws (including many sections of Chapter 40A and Chapter 41) that will be changed.  That document is available here (pdf).  The second one is a narrative description of some the key provisions of the bill, including the thinking behind them.  That document is reproduced in its entirety immediately below.  I’ll be offering my thoughts on some of these provisions in the coming weeks, and I encourage our readers to do the same.  Thanks again Jeff!

 

By Jeffrey R. Lacy, AICP

           

Amendments to Existing Statutes 

Adoption of Zoning: There is widespread dissatisfaction with the local application of Massachusetts land use laws; yet, any change in local zoning requires a two-thirds super-majority vote, thereby entrenching the status quo.  House 1859 improves the ability to respond to changing conditions by allowing communities the option to reduce the vote majority from two-thirds down anywhere to a simple majority (the national norm).

Special Permits: A conditional use permit elsewhere in the U.S. is called a “special” permit in Massachusetts.  And they really are special here, requiring a super-majority vote to be approved and lasting no longer than two years.  It is not surprising developers dread them.  House 1859 reduces the default vote majority to approve from 3/3, 4/5, or 5/7, depending on size of board, down to a simple majority regardless of size of board.  It also extends the duration of a special permit to a minimum of three years instead of the current maximum of two years, and establishes a clear lapse and extension process.

• Building Permits: House 1859 extends the maximum zoning life of a building permit from 6 months to two years before construction must begin.  This better reflects today’s construction schedules, affording builders more breathing room so that details, such as financing, may be attended to prior to actual construction.

• Vested Rights: Securing the rights to proceed with development under a building or special permit is now extremely difficult, but almost effortless with a preliminary subdivision plan.  The paradox is that building and special permits are end-stage permits requiring significant investment by the applicant; whereas a preliminary subdivision plan is exactly that – preliminary.  House 1859 standardizes the vesting provisions for building and special permits, as well as definitive subdivision plans.  In so doing it becomes much easier to vest rights for building and special permits applied for prior to the first notice of a public hearing on a zoning change, a significant liberalization for those applicants.

Approval Not Required (ANR) lot divisions along existing roads (discussed below), if regulated as minor subdivisions, actually enjoy a greater degree of vested rights protections, and over a longer duration, than they otherwise do today.

• Site Plan Review: Site plan review (SPR) is widely used across the Commonwealth despite no mention in statute.  Because there is no guidance some local SPR processes have begun to more resemble discretionary special permits.  House 1859 introduces statewide standards for site plan review, including: a 95-day time frame (shorter than many local provisions today); minimum 2-year duration after approval (longer than many local provisions today); limits on ability to condition (must relate to defined standards/criteria listed in the by-law); limits on imposition on off-site mitigation; and an appeal process based upon the existing record (certiorari).

• Serial Permits: House 1859 fosters more expeditious permitting by requiring consolidation of SPR within the timelines of the special permit process when both are required, and administration by a single local board (separate, non-concurrent, time-consuming reviews by different boards are commonplace today).

• Zoning Variances: The state’s current eligibility criteria is so strict that many cities and towns grant almost no zoning variances; but others ignore the statute and grant them willy-nilly subject to no standards.  There is no middle ground, and at both extremes it’s a broken statute. House 1859 rewrites the current variance statute in its entirety, expanding landowner eligibility to apply for a lawful variance; setting reasonable procedures and criteria; extending the effective duration of a variance from one to two years before lapse if not used; and increasing the permissible extension interval from 6 months to one year.  A workable zoning variance statute provides the intended flexibility to municipalities and property owners.

Development Impact Fees: Development in Massachusetts must produce no impacts because it is one of the few states where assessing an impact fee of a developer is not common practice.  It is no wonder cities and towns push back against many projects when they can’t recoup some of the costs.  The impact fee section adds predictability for big projects; instead of long negotiations over what exactions or mitigation are required in exchange for permit approval, impact fees are quickly calculated up front by formula (prompt).   Applicable fees are known in advance and can be built into a project’s pro forma (predictable).  Moreover, they will reduce local government opposition to development projects.


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Here’s the full text of Massachusetts House Bill H.1859, entitled “An Act Promoting the Planning and Development of Sustainable Communities,” which is presently before the Joint Committee on Municipalities and Regional Government.  I’ll be digging into this jam-packed bill over the next few weeks and posting my thoughts on some of its key provisions.  I invite our regular MLUM readers

A summary of what this bill would do is here.  A few things jump right out: (1) the bill’s title, “An Act Promoting the Planning and Development of Sustainable Communities,” gives me the willies; (2) sayonara, ANR plans; (3) allows town meeting to change zoning bylaws by a simple majority, promoting instability in the law; (4) authorizes impact fees so municipalities

Should the Red Sox start Jackie Bradley, Jr. in left?  I don’t know.  But I do know that the Boston Bar Association’s Land Use and Development Committee, co-chaired by my colleague and fellow MLUM contributor Johanna Schneider, is co-sponsoring two lunch programs of interest to land use lawyers.  The first program, scheduled for April Fool’s