"The bill's backers, including David Begelfer, chief executive officer of the Massachusetts chapter of the National Association of Industrial and Office Properties, claim that 10-taxpayer groups are running amok.
But statistics suggest otherwise."
-- excerpt of an editorial by The Boston Globe Editorial Board
To read the entire Boston Globe editorial, click here.
To read a related article regarding to the ongoing dismantling of historic legal provisions that guarantee public access to Boston's waterfront, click here.
Note: Mass. House Bill HR4741 is sponsored by Michael Rodrigues of Westport. All legislators registering support for this bill will be posted on the SAND website.
To read a related e-mail from the President of the Conservation Law Foundation, click here.
Copyright (c) 2006 Globe Newspaper Company
BILL WOULD FOIL A TACTIC USED FOR WATERFRONT ACCESS
By Stephanie Ebbert, Globe Staff
A key legal tool used to ensure public waterfront access at building developments in Massachusetts would be sharply limited under a measure that is moving quickly through the Legislature with the support of developers and business groups.
For years, environmental groups have employed the provision or even the threat of using it to persuade developers to add walkways, parks, and public spaces such as museums to expensive waterfront projects such as Fan Pier, and to block other projects such as a proposed sailing pavilion along the Charles River. But developers contend that the existing law fosters frivolous challenges that delay their projects and drive up costs. Currently, any ten Massachusetts citizens have the right to challenge the state license that a developer needs to build along waterways or on filled tidelands. Under the measure pending in the Legislature, the right to challenge would be strictly limited to immediate neighbors and others who could prove in court that they would be aggrieved by the developments.
Environmental advocates say the proposed change would undermine the premise behind the 140-year-old state law that says the public, not private landowners, owns the sea and shore.
"Of all the environmental statutes, to try to take that right away from the public is extremely troubling because they are the Commonwealth's the lands held in trust for the public," said Margaret Van Deusen, deputy director of the Charles River Watershed Association.
But Associated Industries of Massachusetts and developers pushing for the change say the the ten-citizens appeal, which was written into the law in 1990, is unnecessary.
"This is one of the most abused appeals that is out there," argued David Begelfer, chief executive officer of the Massachusetts chapter of the National Association of Industrial and Office Properties, which is pushing for the legislation. "A simple letter from anyone in Massachusetts, someone hundreds of miles away, this gives the right for 10 citizens to file an appeal and put on hold what could be a multimillion dollar project that has gone through a very public vetting."
The proposed change is part of a broader bill designed to speed permitting processes for businesses. The bill, expected to come before the House this spring, is supported by House Speaker Salvatore F. DiMasi and has been championed by Ranch C. Kimball, Romney's secretary of economic development. However, spokesmen refused to say where DiMasi and Kimball stand on the proposed change to the process that allows 10 people to challenge waterfront development.
Supporters of the change say waterfront developments already face stringent environmental reviews by the state and other government agencies that give opponents plenty of opportunities to object. But the ten-citizen appeals allow people to object late in the process by challenging the license a developer needs to obtain under Chapter 91, the state law governing waterfront development.
"Once you go through a very laborious, tedious, thorough permitting process, to have frivolous lawsuits placed on top of it just prevents good, wise development on our waterfronts and harborways," said Representative Michael Rodrigues, the Westport Democrat who sponsored the bill.
Supporters of the proposed change point to frequent appeals filed by a single resident Stevan Goldin, who has challenged more than 20 developments on the North Shore, where he lives, and also high-profile Boston projects, including the Fan Pier build-out and a condo and apartment project on East Boston's Pier One. One of his appeals led developer Joe Fallon who was building Park Lane Seaport Apartments in South Boston to commit $25,000 to a museum on the city's defunct West End neighborhood.
In an interview, Goldin said the proposal targets him and the more than 6 million residents of Massachusetts. "That waterfront belongs to me, as much as every other citizen of the Commonwealth," he said. "The regulation actually says that private rights are only incidental to the public's rights."
Robert W. Golledge Jr., commissioner of the Department of Environmental Protection, said his department has already taken steps to halt what it viewed as frivolous appeals. DEP now screens appeals for merit and halts any that appear to be filed for stalling purposes. Those that are allowed to stand go before the Division of Administrative Law Appeals and can be followed by a lawsuit. "From where I sit, we're seeing many less frivolous appeals," said Golledge.
Few citizens file Chapter 91 appeals and the number of appeals has been dropping in recent years, according to DEP. Fifteen appeals were filed in 2003, a dozen in 2004, nine last year, and none so far in 2006.
Environmental groups say they often see no need to file appeals or lawsuits because the mere threat of their power leads developers and the DEP to heed their concerns and negotiate.
In 2000, the Charles River Watershed Association nearly launched a ten-citizens appeal to Boston University's pursuit of riverfront land for a sailing pavilion. The group asserted that by claiming a large portion of heavily used land along the Esplanade, the private university would unfairly control too much public land there. Though the association never filed the appeal, the state secretary of environmental affairs adopted the group's suggestion that the university select a nearby site instead; BU opted not to build there. "It was an unacceptable location," said BU spokesman Colin Riley.
In the early 1990s, the Boston Harbor Association and the Boston Shipping Association used a ten-citizens provision to intervene in the Chapter 91 license for the Central Artery tunnel project. Though the groups never sued, they used the process to pressure the project to complete the Harborwalk along Fort Point Channel.
"The very fact that we can go to court to defend these public rights, in most instances, leads the developer to sit down with us at the table and try to accommodate the public trust interests which we are espousing," said John A. Pike, a retired Ropes & Gray lawyer who now volunteers with the Conservation Law Foundation, an environmental group that has used suits and the threat of suits under the law to reshape developments, including Fan Pier.
Of the proposed change, he said, "Let's face it; you still would be allowed to comment on licenses, but if you don't have the possibility of being able to bring a lawsuit, you don't have anywhere near the clout."
Stephanie Ebbert can be reached at firstname.lastname@example.org
Copyright (c) 2006 Globe Newspaper Company
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