The NorthPoint project in East Cambridge may be required to undergo a Chapter 91 review before construction can continue, but not if Gov. Deval Patrick has anything to say about it.
Less than two months after a court decision put a $2 billion East Cambridge development on hold, Gov. Deval Patrick has filed legislation that would reverse the judge’s ruling.
In February, the Massachusetts Supreme Judicial Court found that the state Department of Environmental Protection erred when it exempted proponents of NorthPoint from Chapter 91, the state law that requires public access and amenities when building on filled tidelands. The development, which is being built on 48 acres near the MBTA’s Lechmere station on the Green Line, will include 2,700 housing units and a mix of office and retail space.
A group of Cambridge residents had brought suit claiming that DEP should have required NorthPoint developers to seek a Chapter 91 license. The governor’s bill is designed to reverse the court ruling, which could require permitting for hundreds of developments on landlocked, filled tidelands that do not abut the water.
As a result of the ruling, trade groups and developers are lobbying Beacon Hill in support of the measure that would undo the SJC decision. Proponents insist that failure to pass legislation swiftly could affect future development in coastal areas of the state. If enacted by the Legislature, the statute would give DEP the authority to regulate the tideland projects.
“The ruling came out of nowhere and it took everyone by surprise,” said David Begelfer, chief executive officer of the National Association of Industrial and Office Properties’ Massachusetts chapter, a leading proponent of the legislation. “For nearly 20 years, DEP had been allowed to exempt projects. Now everything [in the category of] landlocked tidelands is up for grabs; [that] includes an enormous amount of property in the Back Bay and the Seaport District. Most people think this is only about NorthPoint and that’s not so. This will have an impact on lots of real estate in Massachusetts.”
But John Moot, a plaintiff and president of the Association of Cambridge Neighborhoods, said his group opposes the governor’s legislation.
“Our lawsuit did not intend to impact developments other than NorthPoint, but we don’t want to see this law passed because it would allow for unfettered development,” Moot said.
Thomas B. Bracken, a Boston attorney who represented the plaintiffs in the NorthPoint case, did not return repeated calls seeking comment.
Earlier this year, ground was broken for NorthPoint’s second phase as plans were launched for a $70 million Green Line station to replace the Lechmere stop. When completed in 2010, it could be the largest transit-oriented development in the region. The buildings, totaling 5.2 million square feet, will be constructed on 19 blocks and include a 10-acre park.
The first phase of NorthPoint construction began last year with a pair of buildings that offer more than 300 condominiums priced from the mid-$300,000 range to the $800,000 range. At least one building, with about 100 units, has about a third of the units under agreement. The second structure, with more than 200 homes, is scheduled to open late next year. NorthPoint also will be home to 2 million square feet of commercial space, including offices and laboratories, as the market develops.
‘Sweeping Impact’
Privately, activists have criticized Patrick for meddling in the controversial court decision since two of his staffers were associated with the NorthPoint project. Daniel O’Connell, secretary of housing and economic development, was a principal with Spaulding & Slye Colliers, which since has been acquired by Jones Lang LaSalle, NorthPoint’s developer. In addition, Gregory Bialecki, who was recently appointed to reduce permitting time in the state, was a chief legal adviser to the project.
Robert Keough, a spokesman for the Executive Office of Environmental Affairs, insisted that the two high-level team members were not involved in the crafting of the legislation and have recused themselves from any discussion of the project and the lawsuit.
“Should the governor allow this ruling to stand just to avoid the appearance that he’s not favoring the previous work of two officials?” Keough said. “Neither O’Connor or Bialecki said a word about this. The legislation came from EOEA because of the sweeping impact of the ruling.”
Without the legislation, the decision could affect nearly 4,000 acres of land in 40 communities, Keough said. In Boston alone, 3,000 acres on 5 square miles could be targeted for Chapter 91 licensing, he added. Other communities include Gloucester, Lynn, Salem, New Bedford and Fall River, according to Keough.
“We have been told that the ruling has already caused some real estate deals to unwind,” he said. “The confusion over the title would make it difficult, if not impossible, to get financing.”
The SJC has stayed its ruling for six months to give the Legislature a chance to respond by crafting legislation, according to court documents. If enacted, it would reverse the court ruling and NorthPoint would not be required to get a Chapter 91 license. If the lawmakers fail to pass it, there will be considerable confusion over projects already built and in the pipeline.
“It is just so preposterous,” said James Keefe, principal of Trinity Financial Inc., a Boston-based developer who is planning Avenir, a $130 million mixed-use project in Boston’s Bulfinch Triangle at North Station. “The court ruling clouds the permits we have to construct our buildings. This has caused me and our financiers more than a little heartburn.”
Avenir – French for “the future” – consists of a block-long building designed to appear as a series of structures from 3 to 10 stories, reminiscent of other buildings in the area. When completed, Avenir will consist of 241 moderately priced condominiums, residential parking and retail shops at the corner of Canal and Causeway streets above the MBTA’s Green Line and Orange Line stops in the North Station area.
But the SJC decision has Keefe worried that he could miss a June 30 deadline for the project’s financing and delay the project’s groundbreaking. “We are banking on the hope that the state legislation passes quickly,” he said.
Robert O’Brien, executive director of the Downtown North Association, who strongly endorsed the Patrick administration’s legislation, said the SJC identified a pervasive problem and has given lawmakers time to get it fixed. “If it doesn’t get resolved in six months, it’s a huge problem,” he said.
NAIOP and the Downtown North Association said the list of developments that could face uncertain futures include the $160 million West End Residences at Emerson Place, the new $120 million Liberty Hotel, the $8 million residential renovation of a vacant building at 126 North Washington St., the $240 million Nashua Street Residences and the $75 million renovation of the vacant Forecaster building at 121 Portland St.
The list also includes the Government Center Garage, which was recently purchased for $243 million with plans to redevelop it into a mixed-use property that would reconnect the Bulfinch Triangle with Downtown Boston, a longstanding goal of the community.
Still, Stephen Kaiser, another plaintiff, said the worst-case scenario is if the legislation fails to pass, builders will have to get a Chapter 91 license.
“NAIOP is spreading its scare tactics and likening this legislation to 9/11,” he said. “Getting a license is not the end of the world. When the lawsuit was filed it was all about NorthPoint and we didn’t want to involve other areas, but the court picked up on the larger issue.”
State Rep. Martha M. Walz, a Boston Democrat who represents portions of Cambridge, said she is convinced that the legislation will not pass in its current form. “The governor is aware that there’s very strong opposition to the bill from the Cambridge and Somerville delegations,” she said.
A hearing on the legislation, House Bill 3757, is scheduled for Thursday at 1 p.m. at the State House.
