DAVID BEGELFER
Northland Residential already has spent four years trying to get the appropriate permits to build 125 townhouses in Belmont. But now, executives of the Newton-based development company fear they may face further delays.
John C. Dawley, a principal of Northland Residential, recently explained that his company received a sewer connection permit for the Belmont project from the state Department of Environmental Protection. A local citizens group appealed the issuance of the permit and the case was recently assigned to a judge in DEP’s Office of Administrative Appeals. But the case, along with other environmental appeals, was transferred to the Division of Administrative Law Appeals, an independent agency that hears appeals from the state Retirement Board and the Massachusetts Civil Service Commission.
The state transferred the cases as part of an overall restructuring to more efficiently deal with administrative hearings. However, the move is causing anxiety among some real estate developers who worry that development projects could be held up and that their appeals will be heard by judges who are unaccustomed to handling complicated environmental issues. And even more troubling, they argue, is that the changes ultimately could interfere with housing production, even as Gov. Mitt Romney’s administration has vowed to double the number of housing permits issued in the Bay State.
“The administration’s desires to … revise the structure of the appeal review process and in particular the legal division of DEP causes concerns on two fronts,” said Dawley. “One is that there would be, possibly, a significant delay in the proceedings that would occur by default as a result of a restructuring of the process whereby appeals are adjudicated. Second, we have concerns about the expertise or qualifications of the new body that might be assigned to review what we perceive to be fairly complex environmental matters.”
If any changes need to be made, said Dawley, they should be made “in such a way to minimize any delays to pending appeals and that [appeals] be handled by appropriately qualified environmental professionals.”
Housing ‘at Risk’
Dawley’s concerns have been echoed in letters that the Home Builders Association of Massachusetts and the Massachusetts chapter of the National Association of Industrial and Office Properties sent to the governor’s office.
“While the consolidation of adjudicatory appeals in a single state agency may have merit, the plan, as we understand it, does not guaranty (sic) that the current judges would be rehired at DALA or that even judges with environmental experience would necessarily hear environmental appeals,” wrote Paul M. Novak, an attorney who is the current president of the homebuilders group.
“To have these appeals decided by judges lacking the requisite experience or expertise will mean, at best, significant delays in issuing decisions and, at worst, bad decisions by individuals who do not understand the complicated and technical issues in dispute. In either case, the result will be to put at risk the construction of possibly thousand of units of desperately needed housing,” wrote Novak.
The state’s five environmental law judges filed a lawsuit in December after receiving notification that the Office of Administrative Appeals was being eliminated and that the cases were being transferred. But a Suffolk Superior Court judge denied their motion last month. Currently, the judges are still hearing environmental appeals cases.
In fact, earlier this month Dawley appeared at a hearing with the same judge originally assigned to hear his permit appeal. Another hearing is scheduled in the spring.
“At this point, we have not been affected. We have not had anything delayed,” said Dawley. But he added that he’s still concerned about how future hearings could be affected.
“We remain concerned about the process of shifting the appeal review process to DALA,” he said.
Richard “Chip” Nylen, the regulatory counsel for NAIOP, said the judges are handling pending cases involving public and privately financed projects, which are worth hundreds of millions of dollars. He pointed out that the Massachusetts Bay Transportation Authority case approving the Greenbush line, a $257 million case, was recently disposed of by a DEP judge.
“The business community is worried that if this transition is not seamless, then the business community and development will suffer because decisions won’t be made,” said Nylen.
David Begelfer, chief executive officer of the state chapter of NAIOP, said the group’s concern is that “we have experienced professionals making decisions on the current cases” so pending cases don’t have to be reargued.
“Without getting involved in the dispute over whether the DEP administrative judges should have been moved to DALA, our concern focuses on the how this development will affect the regulated community,” wrote Begelfer in a letter. “Certainly something has been wrong with the process. If DALA will help move these cases on a more timely basis, and assuming that the necessary statutory authority exists to permit that agency to render decisions in the subject areas, this may be an appropriate long-term solution. However, we need immediate, concrete assurances that this administrative change will not cause significant delays which affect the development schedules for ongoing projects.”
Added Dawley, “We are supportive of a restructuring of state government to improve efficiency and streamline the process. Our concern is the manner in which these changes are made and the retention of the appropriate qualified individuals.”
Aglaia Pikounis may be reached at apikounis@thewarrengroup.com.
