Edwin J. Shanahan – ‘Checks and balances’

Legislation letting the state’s conservation commissions make developers pay for third-party project review is being challenged by the Greater Boston Real Estate Board, but officials for the trade group insist they do not have a problem with the idea – just its potential breadth.

“We’d like to see some outer limits on what the exposure would be for the developer,” GBREB Chief Executive Officer Edwin J. Shanahan said last week. “We just think there ought to be some parameters and checks and balances so you don’t have a consultant studying [a project] ad infinitum.”

Filed by Rep. Marie J. Parente, D-Milford, at the behest of the Massachusetts Association of Conservation Commissions, H.R. 2944 would alter a bill passed about a decade ago that allows zoning boards, planning boards and even health commissions to require developers to pay for outside consultants to study a given project. That might include architectural review, engineering oversight and traffic impacts. Parente’s bill would extend that right to a city or town conservation commissions.

Calls to Parente’s office were not returned by Banker & Tradesman’s press deadline, but MACC Executive Director Sally A. Zielinski said she believes the original bill should have covered the conservation commissions, entities charged with assessing a project’s environmental impacts. Located in all 351 Massachusetts cities and towns, the groups often do not have the financial wherewithal to hire independent consultants, said Zielinsky, while many also do not have the technical expertise in-house to conduct their own review.

Presently, the only way a conservation commission can obtain such authority is via a home-rule petition, and Zielinski said at least a half-dozen communities have taken that route in recent years. Groton was the most recent, having been granted that power last month, while Sutton is in the process of asking the Massachusetts Legislature for similar permission.

Zielinski said MACC believes the better approach would be to extend the ability to all conservation commissions, resulting in H.R. 2944. Interestingly, GBREB agrees with that outlook, according to Shanahan, who said the association had been concerned by the growing trend of conservation commissions seeking the home rule petitions. Not only has that taxed GBREB’s legislative efforts by forcing it to testify each time a petition is filed, Shanahan said there is also concern that each measure would be crafted differently, resulting in an incongruous landscape for developers.

Shanahan said GBREB has met recently to discuss the matter with Parente, and is now planning to file amendments to H.R. 2944. One of the main issues, he said, is to establish a method which ensures the consultant is truly independent, perhaps by allowing the community to create a list of several qualified consultants and allowing the developer to choose from them, or even doing it in the opposite fashion.

“We need to have enough choices there,” he said. “At least then, the developer doesn’t have to pick some local official’s brother-in-law or sister-in-law.”

In addition, GBREB wants to establish criteria that is not only consistent throughout the commonwealth, but also limits just how far the review might be allowed to extend. That could be done by either restricting how in-depth the third party consultant could get, or by placing a financial cap on the study. “If you don’t do something, it could be endless,” Shanahan said.

‘Middle Ground’
Zielinski said she believes state conflict-of-interest laws already protect developers from having to use consultants with ties to a commission member, and said the MACC does not want a situation where the developer is simply allowed to select the consultant themselves. As to a joint selection process, Zielinski said it would depend on how it is structured, but added that MACC would be open to discussing such details.

Limiting the study is another matter, she said, noting that each project has its own size and complexities that must be weighed on an ad hoc basis. A fiscal cap might make more sense, she said, but that would also depend on how it was structured.

“We’d be happy to meet with them and discuss what’s reasonable,” she said. “There might be a possibility for some middle ground.”

Shanahan also discussed a willingness to compromise, but said GBREB does feel it is important to address the scope of such reviews, and to ensure greater uniformity.

“Right now, you go to Community A and they do it one way, Community B does it another way and Community C does it a third way,” he said. “It would be much better if you know right from the get-go what you are going to have to do with the local commission, and that’s what we’d like to see here.”

Whatever the outcome, at least one local developer says his company has no problem paying for a third party to review its projects. National Development of New England principal John J. O’Neil III said last week that his company feels it provides greater comfort to a community, speeds up the process by eliminating political battles and validates the project’s scope and conclusions.

“We have no issue with it,” said O’Neil. “We do things professionally, we play by the rules, and to have a professional on the other side of the table who can vouch for us is to us a positive vs. a negative.”

Given the size of NDNE’s typical project, which tends to be larger than most, O’Neil said the company also finds the several thousand dollars for an independent review to be a relatively minor cost to incur. When it built the 650,000-square-foot corporate campus in Framingham on behalf of Staples, for example, the third-party fee came to $7,000, O’Neil said.