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A glass half full: The state's new expedited permitting law.

Byline: John S. Ziemba


Given the multiple interests involved in crafting the recently passed expedited permitting law, it is not a surprise that there is debate about whether the new permitting reforms will work as envisioned.

The reforms are a recognition that delays and uncertainty in permitting have been a main impediment to locating new commercial facilities in Massachusetts. With fierce competition for jobs from neighboring and more distant states, such as Rhode Island and North Carolina, the commonwealth has a great deal riding on whether business perceptions about its Byzantine state and local permitting regimes can be changed.

Some may point to the failure of the 2004 permitting reforms and to the fact that the new law requires adoption by each municipality as evidence that there is reason to be pessimistic. However, state leaders were careful to include provisions in this new law that could lead to a much more successful outcome this time around, at least in those municipalities that see the new law as a way to obtain a competitive advantage over their less enthusiastic neighbors.

In communities that elect to participate, the law creates a new 180-day deadline for local permitting processes with respect to designated sites. To be eligible, properties must be commercially and industrially zoned for the development or redevelopment of at least 50,000 gross square feet of floor area. Subject to a small number of specified exceptions and extensions, if a municipality fails to act on a permit application for one of these designated sites within 180 days, the permit is deemed approved.

The legislation includes incentives to entice communities to participate. First, the new law allows municipalities to designate particular sites rather than requiring designation of the entire community under the previous legislative reforms. Also, municipalities that opt in may receive a priority for certain state infrastructure grants and quasi-public financing; are eligible for a new $150,000 technical assistance grant; can obtain enhanced marketing of sites from the Massachusetts Alliance

for Economic Development and by the Massachusetts Office of Business Development; and may obtain technical assistance provided by regional planning agencies and the Massachusetts Development Finance Agency.

In addition to the local permitting benefit of the new reforms, state reviews under the Massachusetts Environmental Protection Act and the Massachusetts Historical Commission must conclude within 120 calendar days of "a state determination of completeness of required review materials."

A newly created state ombudsman and the Interagency Permitting Board will help find ways to move state permitting along expeditiously to ensure that state issues do not complicate and delay the local permitting process.

Some communities, such as Worcester and Uxbridge, have been quick out of the box in understanding that the law could be a tremendous marketing tool for select sites. A reason for optimism about the law is that once it is locally adopted, local governing bodies will have an economic and political interest in ensuring that expedited permitting goes well. In designating sites, local leaders will become personally invested by having to move a community through the difficult dialogue about both the tradeoffs involved in moving expeditiously through permitting and the significant economic benefits to be achieved.

So, will the reforms work? In the end, the answer will be determined by how the new law is implemented at the state, regional and local levels. However, given the economic stakes, maybe we, as a state in need of jobs now, should focus more on how we can make the law work than on waiting until the next, more "ideal" set of reforms, especially where one's definition of ideal certainly depends on where one sits in a transaction. Early signals are that the Patrick-Murray administration has a very good sense how important follow through will be.

The administration's transition team has recommended the governor utilize the new permitting law to signal a commitment to business development. Its report states: "This represents an excellent opportunity to showcase that Massachusetts is serious about business - all without needing new programs, because they are already there. Allaying fears from interest groups and municipalities will be a crucial element, and can be overcome in part by sending this clear message about the administration's commitment to the issue."

So, despite any naysayers to the contrary, maybe there is good reason to be optimistic.

John S. Ziemba is an attorney in the Government Practice at Bowditch & Dewey, LLP. Robert C. Sudmyer and Ned Bartlett, partners in the firm's Environmental and Real Estate Practice, contributed to this article.
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Title Annotation:COMMENTARY
Publication:Telegram & Gazette (Worcester, MA)
Date:Feb 2, 2007
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