On August 2, 2006, Governor Romney signed into law Chapter 205 of the Acts of 2006, An Act Relative to Streamlining and Expediting the Permitting Process in the Commonwealth. Chapter 205 contains an emergency preamble stating that it will take effect immediately.
Chapter 205 represents the culmination of efforts by the Greater Boston Chamber of Commerce, the Massachusetts Chapter of NAIOP and other groups in the real estate and business communities to promote development in the Commonwealth by reducing the delays associated with appeals of state and local permits. Certain key aspects of the bill were opposed by the Massachusetts Municipal Association and the City Solicitors and Town Counsel Association.
Chapter 205 includes specific provisions designed to accelerate administrative law appeals of state permits. Specifically, Chapter 205 amends Section 10A of Chapter 30A of the General Laws of the Commonwealth to require that in any administrative appeal of a license to develop tidelands under Chapter 91, at least five of the required ten plaintiffs must be residents of the municipality where the licensed activity is permitted. This amendment is aimed at curtailing appeals, especially in Boston, of Chapter 91 licenses by individuals who reside elsewhere in the Commonwealth. Chapter 205 also requires the Chief Administrative Magistrate of the Division of Administrative Law Appeals to file annual reports with the Legislature regarding the number and duration of all appeals, and to verify that written recommended final decisions on administrative appeals are issued within 90 days after the record is closed. If achieved, the 90 day deadline for rendering recommended final decisions would significantly shorten the current time period in which decisions are rendered by administrative law judges.
One of the most noteworthy aspects of the new law is the creation of a new “Permit Session” within the Land Court Division of the Trial Court. The Permit Session is designed to reduce delays associated with appeals of local zoning and land use permits, and expands the Land Court’s jurisdiction to include appeals of any municipal, regional, or state permit or approval relating to the use or development of real property (as well as claims for malicious prosecution, abuse of process, intentional interference with advantageous relations, and for certain frivolous lawsuits arising out of or based upon such appeals).
This Permit Session of the Land Court is limited to projects involving twenty-five (25) or more dwelling units or the alteration or construction of 25,000 square feet or more of gross floor area. One of the presumed benefits of the Permit Session is that land use cases will be heard by a judge with special knowledge and expertise in that area.
Chapter 205 provides that actions not commenced within the Permit Session (whether in other courts or the regular session of the Land Court) may be transferred to the Permit Session upon motion by any party to the Chief Justice for administrative and management of the trial courts. Cases involving claims for jury trials will generally not be transferred to the Permit Session in the Land Court, but such claims are quite unusual in most land use cases.
Chapter 205 provides that all cases in the Permit Session shall be assigned to a single judge and shall be assigned to one of three special tracking orders: an average or “A Track” with a presumptive trial date within twelve (12) months; a fast or “F Track” with a presumptive trial date within in nine (9) months; or an accelerated or “X Track” with a presumptive trial date within in six (6) months. These deadlines are substantially shorter than the presumptive deadlines in the Land Court currently applicable to zoning appeals under Land Court Standing Order Number 1-04, which sets forth time standards for all cases filed in the Land Court Department. The Act also includes the unusual feature of specifying deadlines of between two and four months for final disposition of cases in the Permit Session after a motion for summary judgment is taken under advisement or a trial transcript is filed.
It remains to be seen whether the Land Court has sufficient resources to adhere to the new deadlines specified in the Legislation. If the Land Court does process cases in accordance with the schedule set forth in Chapter 205, it will likely substantially reduce the time to resolve permit appeals, which now commonly take eighteen months to two years.
Chapter 205 also amends Chapter 40A of the General Laws to specifically allow developers who have been granted special permits after the effective date of the Legislation, and who have all other necessary permits, to build “at risk if an appeal is filed challenging the validity of the special permit.” This special feature of the Act does not apply to variances or subdivision approvals. Under prior law, a local building inspector could not issue a building permit for work authorized under a special permit until the town clerk certified that no appeals had been taken within the twenty (20) day statute of limitations, or that the appeal had been finally resolved. As a consequence, the mere filing on an appeal challenging the grant of a special permit automatically delayed construction of the project until the appeal was resolved. Chapter 205 makes clear that the option to build at risk does not terminate or shorten the traditional tolling of the special permit viability period should a special permit holder decide not to proceed at risk.
The bill also includes several provisions designed to promote economic development, including additional appropriations for economic development and technical assistance grants to municipalities, additional funding of appeals before the Division of Administrative Law Appeals and the Massachusetts Development Finance Agency, and the creation of a Massachusetts Permit Regulatory Office and State Permit Ombudsman within the Department of Economic Development, which will direct a new interagency permitting board intended to coordinate interagency permitting and improve the efficiency of state permitting procedures.
Martin Fantozzi, Kevin O’Flaherty and David Weiss are directors in the land use litigation group, and Steven Schwartz is a director in our real estate group. For more information, please speak with your usual contact at Goulston & Storrs or any of the authors as follows:
Martin Fantozzi
617.574.3510
mfantozzi@goulstonstorrs.com
Kevin O’Flaherty
617.574.6413
ko’flaherty@goulstonstorrs.com
Steven Schwartz
617.574.4147
sschwartz@goulstonstorrs.com
David Weiss
617.574.6400
dweiss@gounstonstorrs.com
This client advisory should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer concerning your situation and any specific legal questions you may have.
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