Author Archives: Tamara Small

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About Tamara Small

Tamara serves as the CEO for NAIOP Massachusetts.

NAIOP Submits Comments on Eastern Box Turtle Conservation Plan

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Last fall, revisions were made to the MESA (Massachusetts Endangered Species Act) regulations affecting countless projects  in all regions of Massachusetts.  The changes, supported by NAIOP, extended the habitat mapping cycle by two years and  provided more flexibility with species of special concern (e.g. Box Turtle), as well as other important changes.

As a result of these changes, the Natural Heritage and Endangered Species Program (NHESP) recently issued a draft Conservation Plan for the Eastern Box Turtle.  The Eastern Box Turtle has long been a source of frustration for developers who encounter the species in Massachusetts.  Given its prevalence, NAIOP has strongly advocated for delisting the species.

While the Conservation Plan does not delist the species, it sets benchmarks which would allow regions to effectively delist the species once certain habitat thresholds are achieved.  The Draft Plan creates Conservation Protection Zones (CPZs) where projects  would be required to provide greater protection to the species and would require a more intensive permitting process through the Conservation and Management Permit (“CMP”).  Projects outside of the CPZs would have more flexibility.  A major improvement included in the Plan is the establishment of habitat banking as offsite mitigation.

Overall, NAIOP supports the concepts proposed in the Plan, but we believe changes are needed. Specifically, we urge the NHESP to:
•consider a reduction in the area of land protected within CPZs;
•allow property owners within CPZs to realize fair value for their property by allowing them to mitigate project impacts through offsite mitigation contributions;
•notify landowners, in advance, who own property within the CPZs allowing them an opportunity to provide input on the Conservation Plan.

NAIOP applauds the Division of Fisheries & Wildlife, the Department of Fish & Game and the NHESP for drafting the plan and proceeding in the right direction. NAIOP’s full comment letter  provides additional information on the concepts proposed in the plan and our thoughts on how it could be improved.  A final plan is expected this fall.

Workforce Housing, Not Zoning Bills, Key to Economic Growth

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Earlier this week I testified before the Legislature’s Joint Committee on Municipalities & Regional Government on two “zoning reform” bills, the Land Use Partnership Act (LUPA) and the Comprehensive Land Use Reform Partnership Act (CLURPA).  Supporters of both bills claim that the legislation would encourage real estate development in Massachusetts.  Representatives from the real estate industry, however, disagree.  NAIOP believes that these bills contain many problematic elements which could hinder economic development at a time when it is needed most.

The bills make a number of changes to Chapter 40A; some would apply statewide and other changes would apply only in “opt-in” communities.  The legislation does have some positive aspects: zoning protections to special permits and site plan approvals, and limiting subdivision rules and regulations to subjects not already covered elsewhere by local ordinance or bylaw (e.g., stormwater management, off-site traffic impacts.)  However, other parts of the bill would reduce existing predictability and add financial risks for new business growth.

The most concerning aspect of the legislation would significantly alter the zoning freeze that exists under current subdivision law.  It would limit the zoning freeze to a specific proposed development plan, rather than just the land shown on a plan.  As a result, the freeze would be lost with any change in project use and/or density.  This would be a serious problem for commercial real estate developers who would be unable to respond to a changing market. 

Commercial projects require large initial investments in land, site work, and infrastructure for developments that are generally phased and take many years to complete. Without the protections of a subdivision zoning freeze that allows for flexibility in project uses as the markets change, financing would be very difficult to achieve and fewer projects would move forward. 

To truly encourage economic growth, the focus should instead be on creating workforce housing.  While housing costs have dropped recently, a lack of single family, smaller scale, higher density homes fuels the exodus of 23-40 year olds – a key population demographic for economic growth.  This is an issue of great concern to business leaders who struggle to attract the best talent when competing with other states that provide such housing opportunities.

If the Legislature is intent on addressing the Commonwealth’s competitiveness and its housing, it needs to take a different approach.  We urge the Legislature to work with the Patrick Administration, municipalities, and the business community to create a new program establishing zoning districts that permit the construction of a modest number of affordable, small, single-family homes.  The future of our workforce depends on it.

DEP Funding Essential for Economic Development

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Though the real estate development industry may not always be an outspoken advocate for environmental regulation, there is no question every developer agrees that timely and predictable permitting is critical to the success of any project. 

Unfortunately, if the cuts to MassDEP proposed in the House budget are approved, permitting and economic development in Massachusetts could be the unintended victims. DEP’s budget has already been disproportionately reduced by 40% in less than a decade, devastating a staff that has dropped from 1,200 employees in 2002 to about 745 under the proposed FY ’12 House budget recently passed.  Although all of the other agencies under the Energy & Environmental Affairs Secretariat received an average 1% cut from the last fiscal budget, DEP was cut by 10%.  

In development, time is money.  If developers are unable to get environmental permits within a reasonable timeframe, the resulting delays could  kill a project – especially during this fragile economic recovery.

As the Senate develops its budget (expected to be released next week), it must consider the importance of adequately funding DEP.  Under the House budget, DEP may be forced to close one or more regional offices and eliminate another 20% of its permitting staff.  NAIOP strongly suggests that, at the very least, the Senate apply the same percentage cut to DEP used for sister agencies.

Given the current fiscal crisis, budget cuts are an unfortunate reality.  But we must avoid cuts that are so deep they undermine the very economic growth and job creation essential to our recovery.

Public Access – Yes, Vacant Space – No

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I recently testified before the Legislature’s Joint Committee on the Environment, Natural Resources and Agriculture in support of one of NAIOP’s top legislative priorities, An Act to Revitalize the Commonwealth’s Waterfronts (SB371). The bill would address an issue that waterfront owners in Massachusetts have been grappling with for years – facilities of public accommodation (FPA) requirements under Chapter 91, the state’s program for regulating all activities and development on the Commonwealth’s tidelands and other waterways.

Under existing state regulations, the state Department of Environmental Protection requires the ground floor of many waterfront properties to be leased only for uses allowing full public access. Unfortunately, the FPA requirements do not vary by location and do not take into consideration local land use, density, market demand or proximity to street and pedestrian traffic.

Planning studies, including one completed in 2006 by the Boston Redevelopment Authority (BRA), have shown that the required FPA space in existing and proposed projects greatly exceeds the potential demand for such space.  Many of the ground floor FPA areas within existing projects are vacant or have had trouble attracting successful users, some for as long as ten years.  Except for hotels and restaurants, which are defacto public spaces, very few non-maritime projects in the City of Boston have successfully achieved the FPA requirements.  If such projects cannot be successful in downtown Boston, then they have little chance of succeeding in Boston’s other neighborhoods or in other coastal cities and towns where there are fewer pedestrians, less transit and much less density.

The resulting vacant space represents a significant loss of local property taxes.  In these challenging times, this revenue could make a big difference for our schools and communities.  There is no question that the existing FPA requirements impede investment and economic development in waterfront areas.

On behalf of NAIOP, Senator Anthony Petruccelli of East Boston filed the bill to reform the existing FPA requirements.  He is quite familiar with the many projects in his community that have not been able to move forward due to these onerous requirements.  None of these changes would limit public access to the waterfront.  Furthermore, the bill would allow local zoning to regulate interior ground floor use rather than the arbitrary requirement in place under existing law.  It empowers a community to determine what is best for its waterfront. 

This is not a new issue, but it is something that can no longer be ignored.  Now is the time for the legislature and DEP to make the changes necessary to promote economic development while preserving the public’s access to the waterfront.

SJC Decision Affects Landlord Liability

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The Massachusetts Supreme Judicial Court recently ruled in Bishop v. TES Realty Trust that a commercial landlord has a statutory duty to correct an unsafe condition, if the landlord has received written notice from the tenant.  In its decision, the Court determined that G.L. c. 186, § 19, which concerns a landlord’s duty to make repairs when notified of an unsafe condition, now applies to commercial landlords. While such an obligation has been applied to residential landlords, this would be a significant change for commercial owners.

Until now, commercial landlords have only been required to make repairs to common areas or when they specifically contract through the lease to make repairs. Under Bishop, the landlord will be liable for any injuries resulting from inaction on a written notice to make repairs. 

The Bishop decision also makes “void and unenforceable” any lease provision that attempts to waive a commercial landlord’s obligation under §19.  Even if the tenant is obligated to make repairs through the lease (e.g. triple net), the landlord must make the repairs of unsafe conditions if notified in writing by the tenant.  However, the landlord may bill the tenant for the costs of the repairs.

There is no question this decision will have far reaching consequences for the commercial real estate industry.  The decision increases liability for commercial landlords and significantly impacts how commercial leases are structured.  Serious questions remain regarding how this decision will be implemented.  NAIOP is now determining a legislative strategy to respond to the decision.

NAIOP Comments on Proposed Brownfields Policy

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Today NAIOP submitted an extensive comment letter to DEP on its proposed Vapor Intrusion Guidance. NAIOP has significant concerns with the guidance document and the negative impact it would have on the redevelopment of the Commonwealth’s Gateway Cities and brownfield sites. In addition to providing a thorough analysis and review of the document, the comment letter also asks DEP for a detailed response to our comments and concerns.

Brownfields can only be successfully redeveloped when the health of site occupants is protected, the regulatory path is clear, required response actions can be performed in a timely and cost effective manner, and regulatory closure means just that.  In other words, potential developers must be comfortable that these issues can be addressed with a reasonable degree of predictability.  In many places, the draft Guidance does not accomplish these objectives.  As a result, there is a very real risk that a significant portion of the sites that will be subject to the Guidance will not be redeveloped. 

All of NAIOP’s comments are provided with the objective of improving the Guidance in a manner that is consistent with the goals referenced in recent public comments made by DEP Commissioner Kimmell.  We share the Commissioner’s interest in building upon the past success of the Commonwealth’s risk-based, Licensed Site Professional implemented, cleanup program to protect public health while encouraging the redevelopment of contaminated sites.  Unfortunately, we believe the current draft of the Guidance does not achieve these goals.  However, we very much look forward to working with the Commissioner and the Department to develop a final Guidance document that does.

Very special thanks to the members of NAIOP’s 21E Committee, especially committee co-chair Ned Abelson of Goulston & Storrs, who contributed an enormous amount of time to this issue over the past several years.

State Proposing Energy Asset Rating for Commercial Buildings

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Yesterday I attended a Department of Energy Resources (DOER) hearing on its draft Commercial Building Energy Asset Labeling Program in Massachusetts. It would be the first energy asset labeling program of its kind in the world.

Initially a two – three year pilot, the goal is to require all existing commercial buildings to acquire an energy asset rating before a specific “trigger event” (e.g., building sale, re-finance, or major renovation). The lower the energy efficiency, the lower the rating. DOER’s goal is to motivate owners to invest in energy efficiency to avoid a bad score and a devaluation of the property. The proposed program would rate buildings against a “zero net energy benchmark.” As a result, most commercial buildings would be branded with a low score.

NAIOP is concerned that no business group was informed of this initiative until the white paper went out for public comment – especially given the significant impact this will have on investment and lending in the Commonwealth. The comment period closes on February 12 and NAIOP will be submitting detailed comments. In the meantime, here are the highlights from my testimony at yesterday’s hearing: Continue reading →

VOTE! Every Vote Counts!

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Today is Election Day. As we have seen in recent years, a single vote can change an election. If you haven’t voted already, polling places will be open today from 7:00AM – 8:00PM statewide. Need more information? Click here for a full list of candidates.VOTE! In addition, there are three ballot initiatives for you to consider. NAIOP is part of a coalition working to defeat Question 2 and Question 3 on the ballot (the organization has not taken a formal position on Question 1). 

And, in case you missed the most recent edition of the Boston Business Journal, NAIOP, Associated Industries of Massachusetts (AIM) and the BBJ, invited the candidates for governor to discuss issues of primary importance to the state’s business community. The organizations began this tradition in 2006. David Begelfer and Tamara Small of NAIOP interviewed Republican Charles Baker and Independent Timothy Cahill in separate sessions a week before the election. Unfortunately, Governor Deval Patrick’s campaign could not schedule an interview.

We wish the candidates the best!