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Expedited Permitting Favors Developers Over Communities

John Andrews, MCHC, John Andrews, MCHC

Expedited Permitting Favors Developers Over Communities
Local controls would be undermined by “expedited permitting” schemes.
by John Andrews, MCHC

Local boards that oversee health, zoning, and environmental permitting will find themselves in a much weaker position dealing with developers if legislative proposals for “expedited permitting” are enacted.

When a major land development project is proposed, municipal boards are responsible for issuing permits required to protect the public interest in health, wetlands protection/flood prevention, zoning, and reduction of traffic congestion. Boards of citizen volunteers conduct reviews within their own area of authority. In cases where development has undesirable impacts upon the community, the permitting process often leads to negotiations that -improve the proposal to prevent harm and secure commitments to mitigation measures. The character of New England communities has benefited immeasurably from such local citizen engagement.

All this could change under proposals for “expedited permitting” that are rolled into the Legislatures economic development plan. The idea first surfaced in February when Governor Romney told a meeting of the Greater Boston Chamber of Commerce that the permitting process in Massachusetts was “complicated and unpredictable”. He noted that the existing expedited permitting law – known as Chapter 43D – had not yet been adopted by a single Massachusetts city or town. He proposed that it be rewritten to make it easier to adopt and to provide incentives.

A few weeks later, House Speaker DiMasi, also speaking to the Chamber of Commerce, proposed providing tax-payer funded infrastructure as well as state lands to be used for business development, in addition to expedited permitting.

The revised permitting law was introduced originally as part of H603 and then re-introduced as a stand-alone bill, H4170. We will use H4170 as applied in a town, as the basis of the discussion here.

The key thrust of H4170 is to allow the Board of Selectmen in a town to make a decision to use expedited permitting for a particular site. In the case where the site is commercially or industrially zoned, it can be designated an “economic priority site” by a state level “interagency permitting board”, which designates sites as eligible for special subsidies. The Selectmen would identify the list of permits needed for the project. These might include orders of conditions, licenses, certificates, authorizations, registrations, plan approvals, or zoning relief. Once this is done, all town boards involved would be required to make their permitting decisions within 180 days. If they failed to make a ruling within this time, the permit would be automatically approved. H4170 empowers the Board of Selectmen to revise town bylaws and to impose conditions on other boards in order to ensure that the 180 day deadline is met.

The imposition of a 180 day deadline is no problem for simpler, less controversial projects. But for others, it could result in very bad decision-making. Often the initial project description submitted by the developer presents a rosy view of the project impacts and hides certain problems that come to light only during the permit review. A board can find itself staring at the180 day deadline for automatic approval without having obtained sufficient information with which to either approve or deny the permit. H4170 clearly states that “An issuing authority may not use lack of time for review as a basis for denial of a permit.” Denying a permit based on insufficient information would provide grounds for the denial being overturned on appeal. Except for cases where an improper application is discovered, H4170 allows the 180 day period to be extended only with the consent of the applicant.

Under H4170, local boards will also find a “technical review team” appointed by the Selectmen looking over their shoulders. This group is allowed to question the rulings of the boards on “any issue of law, policy, procedure, or classification that the applicant claims is in dispute between the applicant and the issuing authority.” This is a right granted only to developers – there is no provision to allow citizens to obtain a review of a board action that they feel is endangering their health or their neighborhood.

H4170 establishes a special consolidated appeals process for appealing any permitting decisions. All disputed permit decisions are combined and sent to the Division of Administrative Law, a state bureaucracy concerned with the legalities of administrative decision-making. The Division must issue a ruling within 90 days. If the Division rules against the applicant, a further appeal can be made to the Land Court Department.

It is worth noting that developers often take years to plan a project. Multi-million dollar deals require market surveys, architectural studies, financing negotiations, and securing of political backing. And then they wait for the right moment. After 1000 days of secret back-room dealing, the developer can suddenly reveal his plan and insist that he not have to wait more than 180 days for his permits. The permanent impacts on the community – which may involve complicated issues such as flooding, traffic impacts, or toxic exposure – have to be understood in a rushed time scale in which an inability to come to a quick conclusion results in automatic approval. This alone tilts the process in favor of the developer and away from the citizen boards typical of most Massachusetts towns.

In order to induce municipalities to approve Chapter 43D priority development sites, H4170 grants such sites priority with respect to community development action grants, public works economic development grants, brownfields remediation assistance, and other state resources such as quasi-public financing and training programs. Given the history of inadequate funding for these programs, this could mean that the only way communities could hope to obtain such grants would be to file for a Chapter 43D project.

To read the text of H4170, see http://masschc.org/text.html


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