1. Nutter McClennen & Fish LLP World Trade Center West 155 Seaport Boulevard Boston, Massachusetts 02210 Telephone 617.439.2000 www.nutter.com Zoning & Permitting - The Basics and Traps for the Unwary Bob Fishman, Land Use, Permitting, and Development March 11, 2008

2. Nutter McClennen & Fish LLP www.nutter.com2 DUE DILIGENCE CONSIDERATIONS FOR A BUYER/DEVELOPER Understand the business context, goals and constraints before undertaking a zoning and permitting analysis. Relationship to land control documentation. Understand the political context Understand concerns of abutters, neighborhood groups, advocacy groups, adjoining cities and towns

3. Nutter McClennen & Fish LLP www.nutter.com3 DUE DILIGENCE CONSIDERATIONS FOR A SELLER What permits does buyer need? How difficult to obtain? How much time is reasonable for buyer to obtain them? Will land control allow for prosecuting or defending appeals? Impact of deposit/land control payment structure on timing and likelihood of a successful closing

4. Nutter McClennen & Fish LLP www.nutter.com4 DUE DILIGENCE CONSIDERATIONS FOR A LENDER AND INVESTOR Many of the same considerations as a seller, except that there are additional considerations since a lender or investor could become the owner if a default Understand the basics of what the zoning allows, prohibits or allows only by a discretionary permit Is the existing use or structure non-conforming? Implications for rebuilding following a casualty? A future expansion? Cost or operational considerations of all permit conditions – both on-site and off-site. Is the project budget adequate? Has there been opposition or litigation?

5. Nutter McClennen & Fish LLP www.nutter.com5 DUE DILIGENCE CONSIDERATIONS FOR A LENDER AND INVESTOR (CONT.) How discretionary are any permits to be obtained post- closing? Risks of closing before all appeal periods have expired Understand all private development-related agreements with third parties.

6. Nutter McClennen & Fish LLP www.nutter.com6 ORGANIZATION OF LOCAL GOVERNMENT City form of government versus town form of government Key local boards and offices Building Inspector Planning Board Board of Appeals Conservation Commission Board of Selectmen and Town Meeting Open vs. representative Town Meeting City Council or Board of Aldermen and Mayor

7. Nutter McClennen & Fish LLP www.nutter.com7 BASICS OF A ZONING BYLAW OR ORDINANCE Chapter 40A – The State Zoning Act (except Boston) The Zoning Bylaw (town) or Ordinance (city) The Zoning Map Table of Uses Table of Dimensional Controls Table of Parking and Loading Controls Other Requirements (e.g. signage, landscaping) Separate Local Bylaws or Local Ordinances, e.g. Wetlands Earth Removal Hazardous Waste Signage

8. Nutter McClennen & Fish LLP www.nutter.com8 TYPES OF ZONING RELIEF As of Right Amendment to the Zoning Map Amendment to the Zoning Bylaw or Ordinance (text) Process in a town Process in a city Required vote Attorney General approval of town actions Special Permits Public hearing Required vote Time lines Appeals, standard of review Proceeding at risk per recent permit streamlining legislation

9. Nutter McClennen & Fish LLP www.nutter.com9 TYPES OF ZONING RELIEF (CONT.) Variances Use (if allowed) Dimensional Public hearing Required vote Time lines Appeals, standard of review Site Plan Approval Different types and appeal procedures Reconstruction, Alteration or Expansion of a Non-Conforming Use or Structure Findings Statutes of Limitation 6-year 10-year

10. Nutter McClennen & Fish LLP www.nutter.com10 VESTING RIGHTS TO EXISTING ZONING Plan “freezes” 3-year Approval Not Required (ANR) plan freeze (use only) 8-year definitive subdivision plan freeze Special permit freezes and building permit freezes

11. Nutter McClennen & Fish LLP www.nutter.com11 SUBDIVISION CONTROL LAW (G.L. c.41, §§81K-81GG ) Subdivision Control Controls the creation of buildable lots Planning Board rules and regulations General focus on adequacy of roads and utilities within the subdivision Zoning – lot size and frontage ANR Plan – adequacy of frontage – three (3) types of ways qualify Definitive subdivision plan Public hearing Bond or covenant

12. Nutter McClennen & Fish LLP www.nutter.com12 MASSACHUSETTS ENVIRONMENTAL POLICY ACT (MEPA) G.L. c.30, §§61, 62-62H AND IMPLEMENTING REGULATIONS AT 301 C.M.R. §11.00 Purpose of the Statute and Regulations Applicability and Jurisdiction State agency action State financial assistance Land transfer by a state agency State permit or approval Review Thresholds Mandatory EIR Discretion regarding EIR Exclusions MEPA Office/MEPA Director Subject Matter Jurisdiction Fail-Safe Review

13. Nutter McClennen & Fish LLP www.nutter.com13 MASSACHUSETTS ENVIRONMENTAL POLICY ACT (MEPA) G.L. c.30, §§61, 62-62H AND IMPLEMENTING REGULATIONS AT 301 C.M.R. §11.00 (CONT.) Anti-Segmentation Rule Environmental Notification Form (ENF) Environmental Monitor Review and comment periods Agency reviews Decision on ENF and Scope – Secretary’s Certificate Expanded ENF. Request for a Single EIR, a special review procedure or a waiver. Environmental Impact Reports Draft and Final EIR’s (typical sequence) Single EIR (rare) Review and comment periods Secretary’s Certificate Waiting Period for Agencies to Issue Permits

14. Nutter McClennen & Fish LLP www.nutter.com14 MASSACHUSETTS ENVIRONMENTAL POLICY ACT (MEPA) G.L. c.30, §§61, 62-62H AND IMPLEMENTING REGULATIONS AT 301 C.M.R. §11.00 (CONT.) Notification of Commencement of Construction for Projects Requiring an EIR Special Review Procedures Notice of Project Changes and Lapses of Time Material change in a project prior to commencement Lapse of time – 3 year and 5 year rules Secretary’s consideration of environmental consequences and factors Waivers Undue hardship caused by strict compliance No greater protection of environment Phase 1 waiver Section 61 Findings by Agency Issuing Permits All feasible means used to avoid damage to the environment Mitigation minimizes damage to the maximum extent practicable Findings made part of the permit

15. Nutter McClennen & Fish LLP www.nutter.com15 MASSACHUSETTS ENVIRONMENTAL POLICY ACT (MEPA) G.L. c.30, §§61, 62-62H AND IMPLEMENTING REGULATIONS AT 301 C.M.R. §11.00 (CONT.) Legal Challenges Notice of intent to commence an action Statutes of limitation to commence an action Issue Preclusion Article 80 of the Boston Zoning Code (similar to MEPA) PNF; DPIR; FPIR; Article 80 Agreements regarding housing, jobs; Cooperation Agreement Institutional Master Plan

16. Nutter McClennen & Fish LLP www.nutter.com16 WETLANDS G.L. c.131, §40 AND IMPLEMENTING REGULATIONS AT 310 C.M.R. §10.00 Massachusetts Wetlands Protection Act Local Wetlands Bylaws Role of Conservation Commission Role of DEP Resource Areas and Statutory Interests Eights (8) statutory interests Inland and coastal wetlands Buffer zone Exemptions Riverfront Area Intermittent v. perennial streams High water mark Previously developed properties Alternatives analysis

17. Nutter McClennen & Fish LLP www.nutter.com17 WETLANDS G.L. c.131, §40 AND IMPLEMENTING REGULATIONS AT 310 C.M.R. §10.00 (CONT.) Determination of Applicability Abbreviated Notice of Resource Area Delineation (ANRAD) Notice of Intent Order of Conditions Superseding Order of Conditions from DEP (de novo review) Affirm, modify or reverse Administrative Appeals within DEP De novo; adjudicatory

18. Nutter McClennen & Fish LLP www.nutter.com18 WETLANDS G.L. c.131, §40 AND IMPLEMENTING REGULATIONS AT 310 C.M.R. §10.00 (CONT.) Court Appeals Problem of appeals when there is also a local wetlands bylaw Stormwater Management Nine (9) DEP standards Stormwater Management Handbook (1997) Best Management Practices (BMP) Low Impact Development (LID) Rate and volume Pre and post development runoff Infiltrate and detain stormwater Sometimes, there are separate local bylaws and regulations, too Groundwater Impacts NPDES program/USEPA

19. Nutter McClennen & Fish LLP www.nutter.com19 DEP SEWER REGULATIONS (G.L. c.21, §43 AND IMPLEMENTING REGULATIONS AT 314 C.M.R. §7.00) Extensions and connections Thresholds Usually, only local approval if less than 15,000 gpd Private Compliance Certificate if: –Between 15,000 gpd and 50,000 gpd, or –An extension of less than 1,000 feet DEP Permit required for: –Discharge of more than 50,000 gpd, or –An extension of more than 1,000 feet Reduction of infiltration and inflow (I/I) Still need local sewer extension/connection permit

20. Nutter McClennen & Fish LLP www.nutter.com20 CHAPTER 91 TIDELANDS LICENSING G.L. c.91 AND IMPLEMENTING REGULATIONS AT 310 C.M.R. §9.00 Colonial Ordinances of 1641-1647 Private Tidelands Upland owner owns land between high tide line and low tide line, subject to rights reserved to the public for fishing, fowling and navigation Commonwealth Tidelands Commonwealth retained ownership of tidelands seaward of low tide line or 100 rods from high tide line, whichever is further landward

21. Nutter McClennen & Fish LLP www.nutter.com21 CHAPTER 91 TIDELANDS LICENSING G.L. c.91 AND IMPLEMENTING REGULATIONS AT 310 C.M.R. §9.00 (CONT.) Chapter 91 License Originally to encourage building of wharves and placement of fill Role of DEP –License and prescribe terms for filling tidelands, construct structures, use of fill or structures. –Tidelands = current and former submerged lands and tidal flats lying below the mean high water mark. Substantial change in use Regulations contain zoning – like restrictions –Ground floor to be devoted to “facilities of public accommodation” –Setbacks –Open space –Height –Public access –Requirements can be tailored to local conditions by a Municipal Harbor Plan –Designated Port Areas more restricted

22. Nutter McClennen & Fish LLP www.nutter.com22 CHAPTER 91 TIDELANDS LICENSING G.L. c.91 AND IMPLEMENTING REGULATIONS AT 310 C.M.R. §9.00 (CONT.) Water Dependent and Non-Water Dependent Uses Recent Resolution of Landlocked Tidelands Controversy Moot decision/North Point, Cambridge. Legislation restored DEP’s regulatory exemption for existing projects (Pre – 1/1/84 filled tidelands separated from high water mark by at least 250 feet and by a public way). In the future, MEPA review, especially regarding groundwater. Municipal Harbor Plans Locally developed and state approved

23. Nutter McClennen & Fish LLP www.nutter.com23 MASSACHUSETTS ENDANGERED SPECIES ACT (MESA) G.L. c.131A AND IMPLEMENTING REGULATIONS AT 321 C.M.R. §10.00 Natural Heritage and Endangered Species Program (NHESP) within Massachusetts Department of Fish and Wildlife Over 400 plant and animal species listed as endangered, threatened or of special concern. Pre-Construction Review Process Prevent a “Taking” of listed species Broad definition, which includes alteration of habitat

24. Nutter McClennen & Fish LLP www.nutter.com24 MASSACHUSETTS ENDANGERED SPECIES ACT (MESA) G.L. c.131A AND IMPLEMENTING REGULATIONS AT 321 C.M.R. §10.00 (CONT.) Other Key Definitions and Terms: Project Activity Priority Habitat Estimated Habitat (includes wetlands) Natural Heritage Atlas/Polygon/Priority Habitat maps/MassGIS online database If no exemption, will project give rise to a “Take” - death or injury; disruption of nesting, breeding, feeding, or migratory activity by modification of habitat. For plants, picking, killing, transporting or cutting. Appeal of “Take” decisions Conservation and Management Permit if a Take –Meet 3-part test or provide funds to develop a statewide conservation recovery and protection plan

25. Nutter McClennen & Fish LLP www.nutter.com25 ACCESS (CURB CUT) PERMITS G.L. c.81, §21 AND IMPLEMENTING REGULATIONS AT 720 C.M.R. §13.00 MassHighway – access to state highways Recent Regulations (2007) Vehicular Access Permits – Minor, Major and Complex Permits Non-Vehicular Access Permits (e.g. discharge of drainage; utilities within SHLO) “Substantial Increase” in or impact on traffic Different categories of vehicular access permits and review timelines for each category Appeals to Chief Engineer

26. Nutter McClennen & Fish LLP www.nutter.com26 ACCESS (CURB CUT) PERMITS G.L. c.81, §21 AND IMPLEMENTING REGULATIONS AT 720 C.M.R. §13.00 (CONT.) Recording of Permits Related Types of Permits DCR Parkway access permits

27. Nutter McClennen & Fish LLP www.nutter.com27 APPEALS Types of Appeals To local ZBA To DEP To Superior Court To Land Court Declaratory Judgment Certiorari Standing Jurisdictional Standard for “aggrievement” – a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest, supported by credible evidence Injury different from that suffered by the public generally

28. Nutter McClennen & Fish LLP www.nutter.com28 APPEALS Ten Citizens Suits Intervention Enjoin “damage to the environment” Time Frames for Taking Appeals Time to appeal is jurisdictional Timeframes for Litigating Appeals Mediation/Arbitration/Settlement Land Court Permit Session Threshold of 25 or more dwelling units or the construction or alteration of 25,000 s.f. or more of gross floor area, or both Jurisdiction over a broad range of claims affecting real estate projects Single judge One of three time tracks to trial and to decision

29. Nutter McClennen & Fish LLP www.nutter.com29 CHAPTER 40B/COMPREHENSIVE PERMITS (G.L. c.40B §§20-23 AND IMPLEMENTING REGULATIONS AT 760 C.M.R. §31.00) Chapter 40B/Comprehensive Permits Create 10% of local housing stock as affordable Comprehensive permit issued by local ZBA in lieu of multiple local approvals. Availability of waivers. Consistent with local needs Uneconomic conditions Appeal to Housing Appeals Committee (HAC) if local denial or unacceptable conditions Problem of conflicting appeals to HAC (by applicant) and to Court (by third parties)

30. Nutter McClennen & Fish LLP www.nutter.com30 CHAPTER 40R SMART GROWTH OVERLAY DISTRICTS; CHAPTER 40S (G.L. c.40R AND IMPLEMENTING REGULATIONS AT 760 C.M.R. §59.00) Chapter 40R Smart Growth Overlay Districts; Chapter 40S Interplay between 40B and 40R regarding affordable housing. 40R gives municipality more control over location and quality of such housing Encourages dense housing with affordable component as of right in smart growth type locations. “Eligible locations” definition Incentive payments from state (1) upon adoption, and (2) upon issuance of building permits. Encourages early negotiation of project specifics and mitigation Build political support for local legislative vote Design standards Development Agreements – infrastructure, mitigation, community benefits. Assistance with school costs (40S) Role of DHCD 120 day Plan Approval More difficult for opponents to appeal – standard of review; bonds

31. Nutter McClennen & Fish LLP www.nutter.com31 CHAPTER 43D Chapter 43D – Expedited Permitting Local option Criteria for Priority Development Sites 180 day permitting

32. Nutter McClennen & Fish LLP www.nutter.com32 HAZARDOUS WASTE OVERVIEW (G.L. c.21E AND IMPLEMENTING REGULATIONS AT 310 C.M.R. §40.0000 (MCP)) Massachusetts Oil and Hazardous Materials Release Prevention and Response Act - Chapter 21E Massachusetts Contingency Plan (MCP) Regulations Licensed Site Professional (LSP) – Privatized System except for the worst sites

33. Nutter McClennen & Fish LLP www.nutter.com33 HAZARDOUS WASTE OVERVIEW (G.L. c.21E AND IMPLEMENTING REGULATIONS AT 310 C.M.R. §40.0000 (MCP) (CONT.)) DEP Audits Phase 1 Site Assessment (ASTM Standard) Urban Fill (TPH; PAH) Risk Assessment; No Significant Risk Reporting Requirements Immediate Response Action Release Abatement Measure Tier Classification System. Phases I-IV. Time Lines Permanent Solution, with or without an Activity and Use Limitation (AUL). Clean-up to “background” or not. Permitted and prohibited uses.

34. Nutter McClennen & Fish LLP www.nutter.com34 HAZARDOUS WASTE OVERVIEW (G.L. c.21E AND IMPLEMENTING REGULATIONS AT 310 C.M.R. §40.0000 (MCP) (CONT.)) Response Action Outcome Statements (RAO) – Class A, B, and C Brownfields (former developed properties that may be contaminated) State Programs to encourage reuse, such as: –Brownfields Redevelopment Access to Capital (BRAC) program. State-subsidized environmental insurance. –Brownfields Redevelopment Fund in Economically Distressed Areas –Brownfields Tax Credit Environmental Insurance Pollution Legal Liability Insurance Stop Loss or “Cost Cap” Insurance BRAC Program Amount/Term/Deductible Negotiation of “manuscripted” coverage with “tailored” endorsements