Massachusetts is known for the long, tortuous road developers are forced to travel, but a helpful shortcut may have been mapped out by the Legislature and the administration earlier this month.
The governor signed into law on August 2, Chapter 205, known as the Expedited Permitting Law, which took effect upon signing.
The law contains several approaches aimed at reducing the onerous construction appeal and permitting process. This piece of legislation may offer some immediate and short-term relief to the commercial real estate industry, as well as green lighting projects that would have otherwise been cancelled as prolonged litigation soured their viability.
“Just about every development in litigation would have been helped by it,” according to Kevin P. O’Flaherty, a director at Goulston & Storrs in Boston, specializing in land-use litigation, when referring to the impact of this legislation.
He has represented Stop & Shop supermarket developments in Plymouth, Pembroke and Medford – all meeting long litigation holdups. Some of O’Flaherty’s clients have waited for over two years for a final resolution from trial court.
“Delay is often as much the enemy as much as anything else,” concludes O’Flaherty.
Two critical parts of the act address the creation of a new entity within the Land Court, called the “Permit Session,” and the ability of developers to proceed “at risk” while an appeal is underway.
The authors of the legislation hope to expedite the appeal process by pulling cases from several court jurisdictions, including municipal and Superior Court litigation, into a forum that is better equipped to handle these unique cases. Moving those cases can be at the discretion of the developer, which may in itself be a significant benefit.
Permit Session cases are intended to accept only large development projects, covering construction of 25 or more dwelling units, or 25,000 square feet or more of construction area.
One of the intended benefits of the Permit Session is that the presiding judges will have extensive expertise in the development field.
“You try to get into the Land Court if you can,” concludes Robert C. Buckley, senior partner with Riemer & Braunstein in Burlington, about how he has handled previous cases representing developers. “They have the professional experience.”
The Permit Session will not only offer expert judges, but, more importantly, the act created a three-track program to get cases through the legal system at a much faster pace.
A presumptive trial date will be set within 12, nine or six months.
A current client of Buckley’s, Criterion Development, has been mired in the appeal process with the Town of Bedford for over one year. He believes that the fast track element of the Permit Session will be a substantial benefit to developers.
“It seems to tighten the start-to-finish on appeal,” says Buckley.
“For the first time, it imposes deadlines not to just to get to trial, but deadlines from the time a trial is over, until a decision is reached,” observes Steven Schwartz, a director at the law offices of Goulston & Storrs, specializing in real estate development and land use.
Whether those deadlines will be faithfully observed by judges may become an issue, but there are reporting requirements within the act.
The second substantial boon to developers in this legislation is the ability afforded to them to continue construction parallel to the appeal process. With the mere filing of an appeal to a special permit, an entire project had to surrender to the timeline and vagaries of the courts.
“The playing field was tilted toward the opponents,” says O’Flaherty.
Developers will be allowed to continue construction – “at risk.” The “at risk” predicament facing commercial real estate builders and investors may still preempt building, but at least the option to continue has been created. In fact, the reaction from bankers willing to continue making loans in that environment may also be a factor.
But permission to build during the appeal process was one of the reasons why some groups, including the Massachusetts Municipal Association, the City Solicitors and the Town Counsel Association, decided to oppose the bill.
“The bill was weighed down, quite problematic and overall, not a good bill,” says Geoffrey Beckwith, executive director of the MMA.
Although he favors some features of the act, he strongly disagrees with several components, including ability to continue building “at risk” during an appeal.
“In a practical way this shifts the burden from the developer to the appellant,” concludes Beckwith.
The court may be influenced by funds already invested in a project or completed construction work.
And if the appeal is upheld, a community may be starring at a half-finished job site, according to Beckwith. The local community may then be left, not only with an eyesore and safety issues, but no other option than to file suit to force the builder to remedy the project.
Beckwith also takes issue with the emphasis on the Permit Session of the Land Court as a remedy to speeding the appeal process.
“They have created this very narrow funnel hole, through which it is going to take a very long time for the Land Court to process,” foresees Beckwith.
He believes the extensive backlog will only be compounded by a lack of funding and enforcement rhetoric that lacks any real consequences.
Schwartz agrees that the Land Court is in need of funding and more staffing. “They have their hands full,” he says.
Beckwith believes the Legislature and the governor went beyond the appropriate fixes to Chapter 43D.
“The bill creates more problems than it will solve,” he concludes. He predicts that some of the more onerous sections of the act will actually hamper development in the commonwealth, rather than hasten it.
At least there is “institutional momentum,” says O’Flaherty.
There remain several significant issues to be addressed in the commercial permitting and appeal process.
Schwartz would like to see abutters required to post a bond in order to file an appeal. “Right now, for the price of a minor filing fee, you can stop a project in its tracks,” says Schwartz.
“That would have made a huge difference if that had been included,” he added.
Schwartz also thinks the act essentially avoids addressing the impact of municipalities’ home-rule authority on development throughout the state. There are a few funding sources for local towns and cities in the adoption of Chapter 43D, which speeds the permitting process.
“There are some carrots there, but there are no sticks,” concludes Schwartz.
