February 16, 2007
Developers Ducked Needed Permit, says Court – State’s New Permitting Chief was Attorney for Developers
John Andrews, MCHC
The state’s highest court has ruled that a state agency responsible for issuing environmental permits improperly gave developers of a Cambridge site a waiver from a state law protecting waterways. DEP had ruled that no coastal wetlands permit was needed for development of the property.
A lawsuit challenging the exemption was filed by Cambridge residents, with the support of the Association of Cambridge Neighborhoods.
The citizen’s victory in the Cambridge lawsuit reinforces environmental protection for so-called “landlocked” wetlands according to Stephen Kaiser, a former state environmental official who served as an expert witness for the citizen’s lawsuit. Kaiser noted that “DEP just looked the other way, and let the developers proceed without a permit. Now they have to revisit their position.”
Kaiser added that another issue that must be resolved concerns publicly-owned tidelands that the citizen’s research discovered on the site. “Historic tidelands belong to the public. This is public property that cannot just be taken by private developers who want it for their development.”
In an interesting twist to the story, the real estate lawyer who led the fight against the citizen lawsuit was recently appointed by Governor Deval Patrick to oversee the state’s new “expedited permitting” program Prior to accepting his appointment, Gregory Bialecki was a partner at DLA Piper Rudnick, the law firm representing North Point developers, Spaulding & Slye Colliers.
The Chapter 43D “expedited permitting” law was passed in 2006. The idea originated in real estate industry lobbying circles, and was made a priority by Governor Mitt Romney and legislative leaders. In justifying the law, legislators were responding to claims from developers that local boards were not moving fast enough to approve their development permits. The measure was opposed by many public interest groups, including MASSPIRG who stated that the measure “sacrificed thoughtful planning, environmental protection, and community concerns.” Governor Deval Patrick who will now administer the law has repeatedly stated that expedited permitting is a key part of his administration’s economic development plans.
DLA Piper Rudnick is a major advocate for development interests, and includes Cambridge senator Jarrett Barrios among its real estate lawyers. The interlocking relationships between state government personnel and the real estate industry is further strengthened by the fact that Dan O'Connell, the new Secretary of Housing and Economic Development, was Spaulding & Slye’s principal in charge of the North Point development. Bialecki reports to O’Connell.
The North Point case underscores the tendency of state regulators to favor developers over the environment, according to Jill Stein, who has been heading a statewide effort by the Massachusetts Coalition for Healthy Communities (MCHC) to protect local planning rights. Stein observed that “We are failing to hold developers responsible for the safeguards that we need to protect our imperiled environment – an environment upon which our health and economy depend. We have the third highest population density in the country, and we have serious development-related problems, including one of the highest asthma rates and some of the worst surface water pollution. Expediting the permitting process is going to make these problems worse. The permitting reform that we really need is to implement a careful, open and honest permitting process and to make sure it isn’t subverted by the influence-peddling of politically connected developers.”
Analysis of the North Point Tidelands Decision
Context of the Supreme Judicial Court ruling that said the DEP erred in waiving a permit requirement for a Cambridge development. Click Here.