Back in August, I alerted clients and colleagues to the new “Permit Extension Act”, which provides a very valuable two-year extension to qualifying real estate development permits that were in effect or existence between August 15, 2008 and August 15, 2010. Three weeks ago, the Executive Office of Housing and Economic Development (EOHED) issued helpful guidance in the form of “Frequently Asked Questions” to assist local Conservation Commissions, the Department of Environmental Protection (DEP), property owners, wetlands scientists and engineering consultants in implementing the Act.
The FAQ clarifies and confirms many aspects of the Act, such as:
The Act automatically extends the permit by operation of law, so that a permit holder and issuing agency are not required to take action to activate the extension. However, an issuing agency may issue an extension form to a permit holder who requests such a document.
The Act is not limited to state-issued permits; the two-year extension applies to all qualifying permits issued by any town, city, regional or state entity.
Permits related to pre-development activities, such as the clean-up of oil or hazardous materials, are not affected by the Act. Such pre-development activities are considered to be independent undertakings outside the context of a larger development project and, therefore, are not covered by the Act.
The Act extends building permits that were issued or in effect between August 15, 2008 and August 15, 2010.
MEPA certificates, decisions, and waivers are covered, so that qualifying certificates will have two additional years before a “lapse of time” will have occurred that would otherwise have triggered a Notice of Project Change or a new Environmental Notification Form.
Importantly, the Act revives and extends any permit or approval that may have expired during the qualifying period of August 15, 2008 through August 15, 2010. Thus, for instance, “a permit that expired on July 1, 2009, is now revived and set to expire on July 1, 2011.” Also, a permit is revived even if an extension had been previously denied by the agency.
The Act provides an additional two years to the original term of the permit even if it was not due to expire until after the qualifying period of August 15, 2008 through August 15, 2010. Thus, “if a permit or approval was due to expire on September 1, 2011, it will now automatically expire on September 1, 2013.”
However, a permit that had been revoked during the qualifying period is not extended, because the Act specifically preserves the issuing agency’s authority to suspend or revoke a permit. However, the agency must have an independent reason authorized by the terms of the permit in order to revoke or suspend the permit. The agency cannot attempt to avoid the two year extension by revoking or suspending the permit.
The Act does not protect a permit holder from enforcement actions to address noncompliance. The issuing agency’s enforcement authority is retained.
The Act does not extend mitigation that was required as a condition of the original permit. All conditions that applied to the permit continue to apply, so that the permit is subject to the same substantive terms as when it was originally issued. However, any interim deadlines established by the permit are extended for two years, according to the FAQ.
The FAQ indicates that a permit that was pending “adjudicatory appeal” during the qualifying period is not extended. In contrast, a permit pending “judicial appeal” would qualify for an extension if the court were to ultimately uphold the permit.
Of course, the complete text of the FAQ and the Act should be reviewed to evaluate the specific workings of the statute.
Please contact me if you or a colleague has a question on the Permit Extension Act or any real estate development permits affected by the Act.
Monday, November 29, 2010
Tuesday, October 26, 2010
Property Owners, Consultants and Municipalities Should Follow Changing Stormwater Management Regulations
There has been a lot of activity on the federal, state and local levels concerning stormwater runoff and management, which property owners, municipalities and engineers should follow closely. Back in 2008, the Department of Environmental Protection (DEP) amended its wetland regulations to incorporate ten stormwater management standards for projects subject to wetlands jurisdiction. Among other things, those standards introduced “environmentally sensitive site design” and “low impact development (LID)” techniques to Notice of Intent applications and Order of Conditions permits, with which owners and consultants should become familiar.
In 2008 and 2009, the DEP also proposed a statewide stormwater permit which would have created stormwater regulations for upland areas that were not governed by wetland regulations. DEP’s proposal would have regulated private impervious surfaces greater than five acres throughout the state and greater than two acres within the Charles River Watershed. After receiving significant public comment on the proposed regulations, the DEP has not issued final regulations.
On the federal level, the Environmental Protection Agency (EPA) has taken several steps to regulate stormwater runoff and municipal storm sewer systems. In the Spring, EPA issued a draft general permit for stormwater discharges in the Charles River watershed towns of Bellingham, Franklin and Milford, with regulation of impervious areas larger than two acres and a particular focus on excessive phosphorous loadings that are believed to be contributing to water quality violations (e.g., algae blooms, degraded fish habitat, etc.). The public comment period on the draft permit ended on September 30, 2010. EPA is expected to issue a final permit decision after addressing the public comment. Presumably, EPA will look to apply the permit conditions to other towns and watersheds once it sees how the program works in the three towns.
Earlier this year, the EPA also issued a new draft “MS4 permit” (Municipal Separate Storm Sewer System) for 84 cities and towns in the North Coastal Region (north to Newbury, west to Wilmington, and south to Weymouth). Building on the prior permit from 2003, the municipalities are required to continue implementing minimum control measures and best management practices for stormwater runoff, including adopting by-laws and ordinances to control construction site runoff and post-construction runoff. The draft permit is designed to reduce the levels of phosphorous in the Charles River and pathogens in the Charles, Neponset and Shawsheen Rivers. Thus, owners and engineers should expect increased stormwater regulation at the local level, including emphasis on LID techniques. The public comment period on the North Coastal MS4 permit has closed and EPA’s website indicates that it anticipates issuing the final permit in 2010.
Two other stormwater programs should be followed: EPA’s Construction General Permit, which applies to construction activities greater than one acre, which expires in June of 2011. EPA is expected to issue a new general permit for construction in June 2011, to include new effluent limitations guideline (ELG) to control the discharge of pollutants from construction sites. It will be important to monitor and prepare for new changes to that permit.
Finally, the re-issued Remediation General Permit, concerning the discharge of treated groundwater to surface water, is in effect as of September 10, 2010. Operators that received coverage under the 2005 permit are required to take certain actions by December 9, 2010. Owners, operators and consultants need to pay attention to the new requirements in the new permit.
In 2008 and 2009, the DEP also proposed a statewide stormwater permit which would have created stormwater regulations for upland areas that were not governed by wetland regulations. DEP’s proposal would have regulated private impervious surfaces greater than five acres throughout the state and greater than two acres within the Charles River Watershed. After receiving significant public comment on the proposed regulations, the DEP has not issued final regulations.
On the federal level, the Environmental Protection Agency (EPA) has taken several steps to regulate stormwater runoff and municipal storm sewer systems. In the Spring, EPA issued a draft general permit for stormwater discharges in the Charles River watershed towns of Bellingham, Franklin and Milford, with regulation of impervious areas larger than two acres and a particular focus on excessive phosphorous loadings that are believed to be contributing to water quality violations (e.g., algae blooms, degraded fish habitat, etc.). The public comment period on the draft permit ended on September 30, 2010. EPA is expected to issue a final permit decision after addressing the public comment. Presumably, EPA will look to apply the permit conditions to other towns and watersheds once it sees how the program works in the three towns.
Earlier this year, the EPA also issued a new draft “MS4 permit” (Municipal Separate Storm Sewer System) for 84 cities and towns in the North Coastal Region (north to Newbury, west to Wilmington, and south to Weymouth). Building on the prior permit from 2003, the municipalities are required to continue implementing minimum control measures and best management practices for stormwater runoff, including adopting by-laws and ordinances to control construction site runoff and post-construction runoff. The draft permit is designed to reduce the levels of phosphorous in the Charles River and pathogens in the Charles, Neponset and Shawsheen Rivers. Thus, owners and engineers should expect increased stormwater regulation at the local level, including emphasis on LID techniques. The public comment period on the North Coastal MS4 permit has closed and EPA’s website indicates that it anticipates issuing the final permit in 2010.
Two other stormwater programs should be followed: EPA’s Construction General Permit, which applies to construction activities greater than one acre, which expires in June of 2011. EPA is expected to issue a new general permit for construction in June 2011, to include new effluent limitations guideline (ELG) to control the discharge of pollutants from construction sites. It will be important to monitor and prepare for new changes to that permit.
Finally, the re-issued Remediation General Permit, concerning the discharge of treated groundwater to surface water, is in effect as of September 10, 2010. Operators that received coverage under the 2005 permit are required to take certain actions by December 9, 2010. Owners, operators and consultants need to pay attention to the new requirements in the new permit.
Thursday, October 21, 2010
Affordable Housing under Chapter 40B Is Upheld By the Supreme Judicial Court:
In September, the Court issued an important decision limiting the conditions a local zoning board of appeals is allowed to impose on affordable housing under Chapter 40B. At the same time, the Court confirmed the ability of the State’s Housing Appeals Committee (HAC) to strike local conditions that do not comply with the affordable housing law. (The case is Zoning Board of Appeals of Amesbury vs. Housing Appeals Committee).
In the Amesbury case, the local board had imposed 94 conditions (some containing additional subconditions) on its “approval” of a 40-unit condominium development. The board’s conditions concerned project funding, regulatory documents, financial documents, and the timing of sale of affordable units in relation to market rate units. However, the Court ruled that a local board was not authorized to impose those types of conditions. A local board is limited to imposing conditions with respect to height, site plan, size or shape, or building materials as are consistent with the terms of Chapter 40B. The Court also ruled that the Housing Appeals Committee was allowed to strike improper local conditions even if the conditions did not render the project “uneconomic” as that term is used in Chapter 40B. These are important points for developers and contractors.
In the Amesbury case, the local board had imposed 94 conditions (some containing additional subconditions) on its “approval” of a 40-unit condominium development. The board’s conditions concerned project funding, regulatory documents, financial documents, and the timing of sale of affordable units in relation to market rate units. However, the Court ruled that a local board was not authorized to impose those types of conditions. A local board is limited to imposing conditions with respect to height, site plan, size or shape, or building materials as are consistent with the terms of Chapter 40B. The Court also ruled that the Housing Appeals Committee was allowed to strike improper local conditions even if the conditions did not render the project “uneconomic” as that term is used in Chapter 40B. These are important points for developers and contractors.
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