THOMAS M. ALPERIN
‘A balanced scenario’

A recently passed law designed to streamline the permitting of commercial development is expected to speed up the development of housing projects as well.

The Legislature approved a law in late July that enables communities to adopt new legislation and designate certain commercial districts for faster, 180-day permitting. The governor signed the legislation at the beginning of this month.

The new law also directs the Land Court to establish a special session and process for hearing permit appeals, and sets up a tracking system and timeframe to resolve cases, giving the court up to a year to rule on appeals of certain types of development projects.

In addition, the law includes a provision that allows residential developers with special permits to move forward with projects at their own risk when the permits are being contested in court. According to homebuilders and other housing advocates, this part of the law is crucial for residential projects that in the past would have been delayed and stalled for years at a time by abutter lawsuits.

Nearly all cluster residential developments, planned-unit and multifamily developments require a special permit, and when local officials approve a special-permit application it is very difficult for abutters to win an appeal in court, according to Benjamin Fierro, a partner in the Boston law firm of Lynch & Fierro.

“The abutter appeals are almost always unsuccessful, and so therefore, when abutters do bring such an appeal Â… the real intent often of those appeals is simply to frustrate the developer, drag it out, stall, delay [and] add costs” to the development, said Fierro, who serves as counsel to the Home Builders Association of Massachusetts. “It’s not about ultimately litigating the case because Â… the chances of prevailing are quite remote.”

Research of court records shows that special permits that were issued in the last four years have been upheld 96 percent of the time in court after an average delay of two-and-a-half to four years, according to the Massachusetts chapter of the National Association of Industrial and Office Properties.

A total of 82 special permits were reviewed by either the Land Court, Superior Court, Appeals Court or Supreme Judicial Court from January 2003 through April 2006 – and of those 82 permits, only three were overturned by the court, according to information provided by NAIOP.

Under the new law, abutters filing appeals will have to prove some sort of procedural defect in the permitting process – such as improper notice of hearing – or they’ll have to prove that the issuance of the permit was arbitrary and capricious, explained Fierro.

“That’s pretty difficult to do,” he said.

Gregory Vasil, chief executive officer of the Greater Boston Real Estate Board – which, along with the local chapter of NAIOP, heavily campaigned for passage of the law – said the legislation will eliminate the “whole delay factor” that housing developers have faced.

“People who do not have a credible case often look to delay or defeat a project by lodging an appeal,” said Vasil.

Vasil said even though some critics have expressed concern over the law, “the language is clear that the developer can proceed at their own risk.”

And Vasil said the law does not take away abutters’ rights to challenge a special permit in court.

Supporters of the new law hope that a newly established session of the Land Court dedicated to permit appeals and led by judges who have more experience with land-use matters will help shorten the court process and quicken the pace of housing development.

“If you have a judiciary that’s attuned to these cases and sees a lot of these [types of cases], they’ll be able to process the cases faster,” Vasil said.

‘Greater Certainty’
Thomas M. Alperin, president of National Development in Newton, said the new law changes an appeals system that in the past heavily favored appellants who could delay projects in court and significantly increase the costs of developing in Massachusetts.

“One of the biggest issues in development today is the appeals process and the time it takes to adjudicate or resolve appeals,” Alperin said.

Before the law was passed, a community could not issue a building permit to a developer holding a special permit until appeals were resolved – which could take several years, Alperin explained.

The new law not only enables the developer to proceed with the project during an appeal, but it also requires the court to rule on cases within six, nine and 12 months depending the project, he said.

“What this legislation does is create a balanced scenario to resolve appeals,” he said.

“It provides a greater degree of certainty related to the timeframe to resolve all appeals,” said Alperin. “[And] it provides a greater lever for a developer to negotiate and settle appeals with a potential abutter or entity that appeals their projects.”

Two high-profile developments proposed by National Development that have received widespread community support have been stalled for years because of abutter appeals.

In Somerville, the firm obtained city approval almost six years ago to redevelop Assembly Square Mall into a mixed-use development. But the project was held up for five years by neighbors.

Alperin said National Development ended up working with the city to rezone the site to bypass the special-permitting process and enable the city to issue a building permit for the redevelopment project.

“The inability to issue a building permit cost a significant amount of time and money,” he said.

In another case, National Development secured a special permit to redevelop the former New England Sand & Gravel site into a residential development with more than 500 homes but the project was delayed for two-and-a-half years because several abutters and the town of Wayland filed lawsuits to block the project.

National Development negotiated a settlement with the opponents, but the delays and the changing real estate market pushed the firm to sell the project to Pulte Homes, a larger national company, nine months ago.

Alperin said one reason National Development decided to sell was because Pulte is “a publicly held firm with a bigger appetite for delays and risk.”

“We figured, three years later Â… it was better to exit the asset as opposed to proceed with development,” he said.

Some critics of the new law, including the Massachusetts Municipal Association, have expressed concern about whether the Land Court will be able to handle a bigger caseload.

While calling the new special session of the Land Court helpful, Fierro said the court will need additional resources, including more law clerks, to help it move through the cases.

“How significant it turns out to be will depend on whether the Legislature gives more resources to the Land Court,” said Fierro.

The law also includes a section that calls for more funding to be provided to the Division of Administrative Law Appeals to remove the backlog of environmental appeals and require a 90-day decision on appeals.