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Published at BLR.comThe carefully watched, often criticized, and strongly supported "Act Relative to Streamlining and Expediting the Permitting Process in the Commonwealth," which had surprising momentum behind the scenes, has become Chapter 205 of the Acts of 2006. It enjoyed many important revisions and improvements since first filed. It took effect immediately, August 2, 2006.

It is hard to summarize. People who work in land use, municipal law, permitting, litigation, zoning, housing, conservation, real estate, and development should read the new Act itself. For the type of permits or projects of concern to you, consult the cut-off dates within the Act.
Here are some essential points, the take-away provisions.

  1. New Land Court jurisdiction to hear real estate permitting cases (involving state, regional, or local permits or other approvals or regulation) involving projects with at least 25 dwelling units or 25,000 square feet gross floor area.
  2. This new jurisdiction covers appeals of municipal, regional, or state permits, orders, certificates or approvals, or the denials thereof, if they deal with use or development of real property (keep in mind the size thresholds above) under zoning, subdivision, wetlands, water pollution, MEPA, Home Rule bylaws and ordinances, administrative appeals, and several other listed statutes; if they seek equitable or declaratory relief to secure or protect such approvals or challenge the interpretation or application of laws and rules concerning such approvals; if they are about alleged malicious prosecution, abuse of process, intentional or negligent interference with advantageous or contractual relations based upon or relating to such approvals; or if they are claims between people holding any right, title, or interest in land and any governmental agency or public official based on or arising out of any action taken with respect with such approvals.
  3. Such cases heard in a new separate session of the Land Court known as the permit session to be held at a minimum in Suffolk, Middlesex, Essex, Norfolk, Plymouth, Worcester, and Hampden Counties. Faster tracking of such cases (12 months to trial or faster) with assignment of one-judge-one-case. Final disposition of them (4 months or faster) from filing the trial transcript or taking a summary judgment motion under advisement. Recordkeeping and reporting by the Land Court of cases handled and timelines achieved in this permit session and additional resources the Land Court feels it needs to meet its goals for this session.
  4. Very particular procedures for granting, certifying, and recording zoning variances and special permits (or local board failures to issue them). The right of project proponents to go ahead and start projects at-risk pending court appeals about their variances or special permits.
  5. A new deadline of 90 days from the close of the evidence record for so-called Recommended Decisions by the state Division of Administrative Law Appeals (DALA) to be enforced by DALA's Chief Administrative Judge. New responsibilities of DALA to track and report pending cases and their progress through appeals.
  6. Authority for successful plaintiffs to collect attorney fees and costs from losing defendants in cases involving enforcement of Conservation Restrictions, Historic Preservation Restrictions, Agricultural Preservation Restrictions, Watershed Preservation Restrictions, and Affordable Housing Restrictions.
  7. Recognition that such restrictions may be enforced by injunction or other proceedings and shall entitle representatives of the holders to enter land in a reasonable manner and at reasonable times to assure compliance. Provision for how these restrictions may be released in whole or in part by the holders for consideration by reversing the approval process.
  8. Optional with each municipality to adopt a comprehensive Expedited Permitting Program meeting minimum standards (with some financial incentives to do so) for considering projects on so-called Priority Development Sites.
  9. Another local option for municipalities to make Research and Development uses a matter of right by special permit in any nonresidential zoning district that is not a residential, agricultural, or open space district.
  10. Tougher standing requirements under the Chapter 91 (Tidelands and Waterways) for interventions and appeals for hearings, whereby at least five of the ten persons shall reside in the municipality, each person shall file an affidavit stating intent to be part of the group and to be represented, and each intervention shall state the facts and grounds for intervening and the relief sought.
  11. Reports by the Executive Office of Environmental Affairs by 2009 and again by 2012 with respect to the statewide Environmental Justice Program adopted by the Secretary, addressing its scope, effectiveness, problems, deficiencies, and accomplishments plus resources devoted, methodologies used, and environmental benefits or adverse consequences.
  12. Appropriations for Executive Office of Economic Development technical assistance grants, an interagency permitting board, a permit regulatory office, and state permit ombudsman, new permitting specialists in the five regional offices of the Massachusetts Development Finance Agency, grants to regional planning agencies for assistance to municipalities and development of a statewide permitting model, for DALA for its operation (including $250,000 devoted to processing and adjudicating pending and new cases on appeal from the Department of Environmental Protection), and various expedited permitting initiatives at the Cape Cod Chamber of Commerce, Massachusetts Fisheries Recovery Commission, South Shore Tri-Town Development Corporation, and Massachusetts Alliance for Economic Development.

In summary, the new Expedited Permitting Act offers a smorgasbord of tailored, targeted provisions to prod government permitting in general, and court and agency appeals in particular, for various types of real estate development projects, with financial infusions to make it happen and some financial incentives to do even better for priority sites.

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