Problems with the rushed permitting law, H4741

1) UNDERMINES LOCAL ZONING. The bill creates a special permit process that would allow businesses to override local zoning and establish R & D/manufacturing facilities up to within 50 feet of residentially-zoned districts. This revision of the state’s zoning code would apply to all municipalities, whether they want it or not. This is the same provision that MCHC successfully fought to get out of the Jones-Stanley surplus land bill. (Section 10)

2) WEAKENS PROTECTION OF WATERWAYS AND COASTAL AREAS. The bill eliminates the right of citizens to intervene to protect coastal areas and riverways that belong to us all as critical treasures of the public trust. The bill precludes most appeals of development decisions by limiting appeals to those who are "aggrieved" by criteria that are rarely possible to satisfy. (Sections 8 and 9)

3) REQUIRES AUTOMATIC APPROVAL IF CAUSE TO MODIFY OR STOP THE PROJECT IS NOT FULLY ESTABLISHED WITHIN AN INADEQUATE 180-DAY TIME LIMIT. The expedited permitting process coordinates all required permits under a single timeline in which rulings must be made within 180 days. This one 180-day limit applies no matter how complex or controversial the project. If a ruling is not made within this time, then approval is automatic. This rigid timeline limits the opportunity for public scrutiny of development proposals to clarify and remedy the economic, housing, environmental etc. impacts on the community. It is especially dangerous when serious problems (such as unforseen toxic contamination) emerge only after the project has been studied for several months. If a board were to rule against a project before they have had time to fully document their reasons, the ruling would be vulnerable to reversal through a lawsuit by the developer. (Section 13)

4) ALLOWS POTENTIALLY HARMFUL DEVELOPMENT TO PROCEED WHILE STILL UNDER APPEAL. The bill allows development to proceed even while appeals are being heard, a provision that allows irreparable damage to be done while a harmful development proposal is in the process of being denied. (Section 11) The bill also fails to require timely environmental impact (MEPA) reports. (Section 13) The implications of these provisions are disturbing considering that many waterbodies are already experiencing ecosystem failure from shoreline overdevelopment.

5) PRESSURES COMMUNITIES TO ACCEPT RUSHED PERMITTING. The bill requires that the local governing body (board of selectmen, or city council and mayor/manager) apply to have sites designated (by a state “interagency board”) for expedited permitting. While this appears to make the adoption of expedited permitting subject to municipal control, strong incentives are provided for expedited sites – including priority access to grants and technical assistance. This puts communities that do not adopt expedited permitting at significant disadvantage. (Within section 13: Section 12 of 43D)

A hint of the pressures that will be brought to bear is illustrated by the comments of Rep. Barabara L’Italien (D-Andover) who praised the bill saying” I really do believe it’ll give our cities and towns the capability to do what the business community wants and do what the municipalities want, too, because the municipalities definitely need to find other ways to diversify their funding sources and they know it….” [State House News, 3/7/06]. This acknowledges that the fiscal desperation of municipalities promotes will promote their use of expedited permitting, even when a particular proposal may not be in the community’s best interest. Regrettably, this may increase lobbying pressure against adequate state funding for community based development, so as to enhance the community’s need to seek funding through mechanisms promoted by the business lobby, such as expedited permitting.

6) ERODES THE TRADITIONAL AUTHORITY OF TOWN MEETING. Ambiguous language appears to place the “opt in” for expedited permitting in the hands of the governing body (ie Board of Selectmen in a town). Under a town form of government, acceptance of a statute is normally determined by Town Meeting, not the Board of Selectman. (Chapter 4, Section 4 MGL) Thus the bill erodes decision-making authority of Town Meeting, and further concentrates critical decision-making in the hands of a small local executive group. This undermines traditional checks and balances of local town democracy, and puts critical decisions in the hands of a small group that may be more readily influenced by campaign contributions from those seeking to site controversial projects. (Within section 13: Section 4 of chapter 43D)

7) DISREGARDS LONGSTANDING SAFEGUARDS FOR LOCAL DEMOCRACY AND THE ENVIRONMENT. Several major blls that empower real estate developers at the expense of communities have been rushed toward enactment this legislative session. These measures undermine the New England democratic tradition of investing local boards with significant power over land use decisions that impact their communities. Taken together, these bills would shift power away from communities towards state bureaucracies and real estate interests. The end result is to concentrate financial and regulatory control into fewer hands – hands that are more easily influenced by corporate lobbyists and that are often unaccountable to affected communities.