SJC Supports NAIOP Position in Sudbury v. MBTA

This morning, in a landmark win for the commercial real estate industry, the Supreme Judicial Court (SJC) of Massachusetts unanimously affirmed the Land Court’s dismissal in Sudbury v. MBTA , holding that the prior public use doctrine is inapplicable when land owned by a public entity is conveyed to a private entity for a different use.

In September of 2019, NAIOP filed an amicus brief with the Real Estate Bar Association urging the SJC to uphold the Land Court’s determination that the state’s “prior public use doctrine” did not apply in this case. Such a requirement would have a significant impact on the ability of any developer to acquire property or even property rights (like an easement) from a public entity (whether a municipality or state agency), resulting in a long, unpredictable and expensive process requiring legislative approval for any change of use in a public property deal.

In its decision, the SJC expressly pointed to NAIOP’s amicus brief, which cited several recent housing projects creating hundreds of units of affordable housing and additional public benefits. Today’s decision allows these and other critical public-private partnerships to continue, creating massive community benefits across the state.

NAIOP is pleased with the SJC’s ruling, and grateful to Jessica Kelly, Daniel C. Johnson, and Ron Ruth from NAIOP Gavel member firm Sherin & Lodgen, and to members of the NAIOP Amicus Brief Advisory Committee, for their work on behalf of the commercial real estate industry on this matter. 

COVID-19 Update: Governor Baker Announces Phase 3 Start Date, Amends E.O. Tolling State Permits; SJC Releases Updated Operations Order; DPU Begins Energy Relief Plan for C&I Customers; MBTA Announces Flex Pass Pilot

Governor Baker Announces Phase 3 Start Date

Today Governor Baker announced that Phase 3 will begin on Monday, July 6. While Phase 3 is anticipated to be in place until there is an effective treatment or vaccine for COVID-19, Governor Baker indicated that Phase 3 will be implemented in two steps.

Businesses allowed to reopen at this point in Phase 3 include but are not limited to:

  • Fitness Centers and Health Clubs
  • Museums and Aquariums
  • Movie Theaters and Performance Halls (at limited capacity)
  • Casinos (with additional minimum protocols set by the Massachusetts Gaming Commission)

Additionally, the Baker-Polito Administration has updated the guidance related to gatherings. The new guidance related to indoor gatherings will allow eight people per 1000SF, with a maximum of 25 people. Outdoor enclosed gatherings will be limited to 25% of the capacity, with a maximum of 100 people. This updated guidance will be effective Monday, July 6, except for the City of Boston, where it will be implemented Monday, July 13. For all guidance, orders and updates related to the Commonwealth’s reopening plan please visit: www.mass.gov/reopening

Governor Baker Amends State Permit Tolling Order

This morning, Governor Baker signed an Executive Order rescinding and replacing his March 26 Order to suspend relevant permitting deadlines and extend out the validity of state permits.

Importantly, this updated order addressed NAIOP’s significant concerns with the previous order’s appeals language. In the updated order, any individual whose right to appeal would have expired between March 10, 2020 and July 1, 2020 shall have until August 10, 2020 to proceed with their appeal. Any person whose right to appeal expires after July 1, 2020 will be held to the regular or statutory deadline, or by August 10, 2020, whichever is later.

NAIOP advocated strongly for this Executive Order given the extraordinary impact of the previous order on projects throughout the Commonwealth, and we were pleased to see our concerns addressed in the final language. A huge thank you to the NAIOP members who provided their expertise and insight throughout this process.

SJC Releases Updated Order Regarding Court Operations

On June 24, the Massachusetts Supreme Judicial Court (SJC) issued an order further staying certain hearings and trials and limiting court house access until at least July 13, 2020. In addition, the order affirmed that there will be no further extensions of deadlines or civil statutes of limitations beyond June 30, 2020, “unless there is a new surge in COVID-19 cases in the Commonwealth and the SJC determines a new or extended tolling period is needed) and that appeal periods on local permits will begin to run on July 1, 2020.

DPU Begins Energy Relief Plan for Commercial and Industrial Customers

On June 26, the Massachusetts Department of Public Utilities (DPU) approved the commencement of a program designed to assist companies that have fallen into arrears on gas or electricity payments during the COVID-19 pandemic. Full implementation of the program will begin after the March 10 State of Emergency is lifted and current customer protections expire. The Customer Outreach Plan will consist of four phases. You can read the full order by clicking here. Any company having trouble paying their electric or gas bills due to COVID-19 should contact their distribution company for further information.

MBTA Announces Five-Day Flex Pass Pilot for Commuter Rail mTicket

Yesterday, July 1, the MBTA began the new Five-day Flex Pass on mTicket pilot, a program designed to allow greater flexibility for commuter rail passengers as employers and employees explore staggered schedules and telework policies due to the COVID-19 pandemic. The pilot will take place from July 1 – September 30, 2020 and is only available within the mTicket app. Once purchased, the Flex Pass provides five one-day passes that can be used at any time in a 30-day period. This pass, available for all zones and interzones, is a 10% discount when compared to five round-trip tickets.

Tackling Congestion: Lessons Learned from London and Stockholm

Other Cities Show Greater Boston Needs Both Carrots and Sticks

The below column, written by NAIOP CEO Tamara Small, first appeared in Banker and Tradesman on December 15, 2019.

Whether it’s in a board room, on a soccer field, or at the doctor’s office, the conversation invariably touches on traffic. Our daily commutes have become personal battles and the details are shared like war stories.  

As area residents know, and as multiple reports have confirmed, congestion has gotten worse in Greater Boston. Boston’s economy is booming – with nearly 100,000 new jobs created in the last year alone. There are 300,000 more vehicles on the road than five years ago, which is only projected to grow with the on-demand economy. The result? Bottlenecks on highways and local roads throughout the region. It’s clear that creative solutions, big and small, are needed to address congestion.  

Boston is not alone. Other cities across the nation are struggling to address traffic, air pollution, unsafe roads and emissions. Recognizing that the U.S. benefits by learning how other nations have tackled this issue the Bloomberg American Cities Climate Challenge, along with the Barr Foundation, brought a study group to London and Stockholm to see firsthand how these cities have used one specific tool: congestion pricing.  

How Other Cities Tackle Traffic 

The group, of which I was a part, included elected officials, environmental advocates, and business representatives from San Francisco, Seattle, Portland, Washington, D.C., Honolulu, Boston and Philadelphia. We met with government officials, transit industry experts, and local community members who shared how London and Stockholm implemented congestion pricing and how it has evolved over the years.  

London launched congestion pricing in 2003 after Ken Livingstone’s mayoral campaign included a pledge to reduce the number of vehicles entering the city. In advance of the launch of the program, London focused on making public transit and other alternatives to car travel easier, cheaper, faster and more reliable. It expanded its already robust public transit options by adding 300 buses, froze fare increases, created discounts for residents in the district and upgraded trains and subways heading into the zone.  

Within the first year of the program, the number of cars in the congestion pricing zone dropped, eventually creeping back up somewhat as the population increased and road capacity was reduced by allocating space to cyclists, pedestrians, and buses. Today, the number of people riding buses is up 40 percent and twice as many people commute by bicycle than in the year 2000. Overall, traffic in London has decreased by 20 percent.  

In Stockholm, congestion pricing was implemented in 2007 after a six-month pilot program. Again, in preparation for the program, major investments in public transit were made, including 14 new bus lines, more high frequency trains, and 2,500 new park and ride spots. People experienced a decrease in traffic congestion starting on day one of the program, which has continued with a permanent reduction of 20 percent less traffic.  

Four Key Takeaways 

In some ways, comparing Boston to Stockholm or London is not an apples–to–apples comparison. These cities have very different public transit systems. However, as the Greater Boston area attempts to address congestion through a variety of mechanisms, the following are the key takeaways from the study trip:  

  1. Pilot programs work. In Stockholm, public support for congestion pricing was extremely low until a pilot program allowed people to experience it firsthand. It demonstrated the significant impact congestion pricing could have on traffic. A pilot program also provides critical data that could shape and fine–tune a more comprehensive program.
  2. People will not get out of their cars if alternative mobility options do not exist. Whether it’s new protected bike lanes, expanded bus routes or increased frequency of commuter rail and subways, investments and expansion must be made before a comprehensive congestion pricing program can succeed. Importantly, the revenue generated by congestion pricing in Stockholm and London was used to further expand these options. In addition, riders must be confident that the public transit system is reliable.
  3. A successful congestion pricing program must consider equity – whether it is the impact on certain populations or regions. Outreach to key community stakeholders along with data collection on exactly who would be impacted and in what ways are critical in the development of congestion pricing programs. 
  4. Congestion pricing is an effective tool. Cordon and area pricing have generally reduced driving by 15-20 percent and congestion by 30 percent or more. Importantly, in Stockholm, even after investments were made to expand public transit options, ridership did not increase until after congestion pricing was implemented. This is proof that a carrot and stick approach is needed to effectively reduce congestion.  

One thing is clear, there is no one silver bullet that will reduce congestion throughout Greater Boston. A wide range of investments and actions is needed. MassDOT recently issued recommendations on how they plan to tackle congestion including, among other things, addressing local and regional bottlenecks where feasible; reinventing bus transit at both the MBTA and at regional transit authorities; increasing MBTA ridership and capacity; and creating infrastructure to support shared travel modes.  

Changes of all sizes will make a difference and NAIOP looks forward to working with MassDOT and key stakeholders as discussions around addressing congestion continue.  

Sudbury Power Line Fight Could Affect Development Deals Statewide

The following article, written by Jon Chesto, was first published in the October 2 online edition of The Boston Globe

At first glance, it might seem like a simple courtroom showdown between the MBTA and the Town of Sudbury over an underground power line.

But to the state’s major commercial real estate trade group, the fight that played out at the Supreme Judicial Court on Tuesday is about much more.

NAIOP Massachusetts isn’t a party to the case. But it did weigh in — on the side of the Massachusetts Bay Transportation Authority and utility company Eversource — through a friend-of-the-court brief.

The reason? Should the state’s highest court side with the town, NAOIP worries that transfers of publicly owned properties across the state could grind to a halt.

To get this far in its appeal, the town homed in on the state’s “prior public use doctrine” — a common-law understanding that land already devoted to one public use can’t be changed to a different one without state legislation. A Land Court judge ruled in 2018 that the doctrine didn’t apply in the Sudbury case, because the land would be leased for a private use. The town appealed, and the SJC decided to take up the issue.

George Pucci, a lawyer for Sudbury, argued Tuesday that this is an unusual case, one that would not open the floodgates. He noted that much of the right-of-way had once been acquired by eminent domain for transportation purposes.

But the potential broader impact was on the minds of the justices, as their line of questioning made evident.

NAIOP got involved after the SJC put out a call for input in May. Of particular concern to the trade group: The judges said they wanted to review whether the public-use doctrine should be in effect for transfers of property that would lead to private uses.

That request  didn’t come out of left field. Pucci, in his initial appeals brief, argued it wouldn’t make sense to prohibit the transfer to an inconsistent public use while allowing the sale for an inconsistent private use. This, he wrote, would defeat the purpose of the doctrine: to protect public land from being converted to a different use without legislative approval.

Words like those can strike fear in the heart of any developer. Tamara Small, NAIOP’s chief executive, says a mandatory trip to the Legislature would open up a whole new layer of uncertainty and expense for public-private partnerships. Begging on Beacon Hill would bog down the development process, the mere prospect preventing many deals from happening in the first place.

In its brief, NAIOP offered a smattering of examples to emphasize some of these partnerships’ public benefits: an apartment complex in Chinatown with more than two dozen affordable units, clean energy from solar panels that dot state land along the Massachusetts Turnpike and other highways, the pending Polar Park stadium that will be built on city-owned property for the soon-to-be Worcester Red Sox.

What about Eversource? What public benefits would the electric utility offer with its deal? The company says its 9-mile Sudbury-to-Hudson line, mostly in a rail corridor, would bring nearly $9.4 million in lease payments to the T over 20 years. The line would help improve grid reliability in Greater Boston, with a side benefit of allowing a rail trail to be built along the stretch.

To the Sudbury town officials who authorized the litigation, these benefits don’t seem worth the adverse environmental impacts, such as damage to wetlands and wildlife habitats along the corridor.

Jessica Gray Kelly, NAIOP’s lawyer, says her client is agnostic on the fate of that project. But the association’s members do worry that the effects could ripple far and wide if the court decides legislative approval is needed for any change of use in a public property deal, not just for those in which control would be transferred to another public agency.

It would be a new world for real estate development in the state. Kelly demurs when asked how she thinks the court will react. But NAIOP’s insertion into this seemingly local fight shows the trade group is not taking any chances.

You can find NAIOP’s Amicus Brief and more information about the case by clicking here.

MBTA On Track to a First Class System

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The MBTA has come a long way from the winter of 2015! With the formation of the Fiscal and Management Control Board and the waiver of the Pacheco law (regarding privatization), the T has reduced its operating expenses substantially, allowing more money to go to critical capital improvements. The growth in operating expenses averaged 5% annually over the last 15 years (against a 2% annual increase in revenue during the same period), but, for the first time, showed negative expense growth in 2016, with zero growth projected for 2017!

The reforms are working and consumer ratings are up. Here are some of the changes over the past 18 months that have been implemented to put the MBTA on a fiscally sustainable path:

  • Introduced monthly financial targets and manager accountability
  • Moved MBTA onto statewide contracts and payroll system
  • Streamlined corporate HQ/admin positions with 30% reduction
  • Strengthened and enforced overtime and attendance policies
  • Modernized cash-handling & warehouse through contracting
  • Restructured Carmen’s Union contract work-rules and wage rates
  • Launched Uber/Lyft and Taxi paratransit pilots
  • Restructured and refinanced debt portfolio; locked electricity rates
  • Rebid parking/advertising and raised system-wide fares
  • $100M winter resiliency investments / $140M in capital lock-box

In addition, the MBTA is in the process of privatizing the “cash room” operation and the manual route scheduling system. Both of these are projected to save the T over $12.2 million annually.

Another example of reforms is the pilot project for “The Ride”, providing access to the disabled community. An average ride has cost the T $46; however, the pilot using Lyft/Uber brought the cost down to $8.98. Along with that, consumer satisfaction shot to 79%. The transit industry standard is 12% and the MBTA, as a whole, has been a -1%.

The next proposal in front of the FMCB will be the privatization of Bus Maintenance.  A privatized machinists staffing is projected to be based on 200K miles per machinist versus 100k miles for the current MBTA staffing (requiring half of the current maintenance staff).

NAIOP has been a strong supporter of MBTA reforms and has been a part of a broad business and municipal “Fix Our T” coalition. We encourage the administration and the control board to continue bringing efficiency and cost savings to the T, while investing in its capital plan, providing the riders and the tax payers with a first class transit system.

MassDOT Wants You!

MassDOT logo

MassDOT has started a talent search for a range of professionals to work for the agency, as well as for the MBTA. They are looking for the right people with the right skills at the right time, and that time is now! These will be energetic individuals that are familiar with best practices and want to assist in transforming the current transportation system into a world class system.

This is a great opportunity to get involved with an agency that has problems, for sure, but also one that is on the move and seeking change with top notch leadership at its helm. The experience that these new hires will get will be invaluable as they move on with their careers. Or, for more seasoned professionals, this is a great way to give back and shape the future of transportation in the Commonwealth.

Some of the current jobs include:

  • MBTA Assistant Administrator of Contracting Strategy & Supply Chain
  • MBTA Business Analyst
  • MBTA Deputy Administrator of Customer Experience
  • MBTA Director of Cost Control & Lean Strategy
  • MBTA Director of Financial Analysis & Planning
  • MBTA Director of Revenue
  • MBTA Manager of Capital Budget
  • MBTA Sr. Operating Budget Analyst

If you know of someone looking for a new, challenging opportunity, let them know about MassDOT.

MBTA Control Board’s First Report Shows Urgent Need For Change

The MBTA’s new Fiscal and Management Control Board (FMCB) has just issued its first 60-day report identifying the scope of the challenges facing the T. The GreenLineFMCB has been tasked with identifying and shaping solutions to improve operations and performance. The report is extensive, probing, and extremely candid. The Board members should be congratulated on producing such a clear case for moving from the status quo to a system that is reliable, transparent, and sustainable.

It is no surprise that the some of the underlying problems are even more serious than originally thought. Firstly, the MBTA’s annual operating budget is unsustainable, with expenses increasing at nearly three times the rate of revenue growth. Secondly, annual capital spending on deferred maintenance and capital investment is substantially below the $472 million annual spending needed to prevent the backlog from further increasing. The prolonged under-spending has caused the backlog in capital investment to rise to $7.3 billion. The report states that the management team has committed to ensuring that available capital funds are spent, maintaining the MBTA system at a level that will prevent the backlog from further increasing while improving the overall condition of the system and its facilities as expeditiously as possible.

The FMCB has reported some progress:

• Total Capital spending increased to $740 million in FY2015 and is budgeted to be $1.05 billion in FY2016.
• The MBTA planned, designed, and is executing a Winter Resiliency Plan to better prepare the system to withstand major storms and extended periods of cold.
• The MBTA and Keolis Commuter Services have signed a Performance Improvement Plan and are working to address identified shortfalls in performance.
• The FMCB and MBTA management are developing a strategy to make improvements in the procurement and contracting processes and to review all existing service contracts (e.g., the MBTA issued a Request for Information for the private-sector on some low and moderate ridership bus routes, express bus routes, and late-night bus service).
• The FMCB and MBTA management are focusing on performance metrics to drive improvement in MBTA operational practices and to expand transparency and accountability with the riding public.
• The FMCB and MBTA leadership are also pursuing efforts to increase workforce productivity and to reduce absenteeism among MBTA staff.
• The FMCB is committed to a positive employee engagement program, understanding that morale, sense of mission, clear management and decision-making structures, and workforce investments are all necessary ingredients for any successful organization.

It is very clear to the reader of this report that the work of FMCB has just begun. The goal is to have a transit system that is sustainable and accomplishes its mission. Hopefully, in the not too distant future, the MBTA will be operating efficiently. It will certainly take a lot of work by a dedicated management team and workforce. However, there is no alternative. Businesses, residents, and workers must have an MBTA that is reliable.

NAIOP Applauds Legislature for Budget with Important T Reforms

Last night a $38.1 billion state budget (H. 3650) was released from conference committee. NAIOP applauds the conference committee members (House Ways and Means Chairman Brian Dempsey, Senate Ways and Means Chairwoman Karen Spilka, Sens. Sal DiDomenico and Vinny deMacedo and Reps. Stephen Kulik and Todd Smola), Senate President Stan Rosenberg, and Speaker of the House Robert DeLeo for their leadership in passing a bill that includes important reforms for the MBTA.

One of the most important aspects of the bill (and something NAIOP has championed) is the creation of a MBTA Fiscal and Management Control Board chaired by the Secretary of MassDOT. The budget states that the Fiscal and Management Control Board shall “initiate and assure the implementation of appropriate measures to secure the fiscal, operational and managerial stability of the authority and shall continue in existence until June 30, 2018.” A two year extension beyond 2018 could be granted if needed. The Board shall formulate and recommend a plan to the secretary of transportation to stabilize and strengthen the finances, management, operations and asset condition of the authority. The Fiscal and Management Control Board will also develop performance metrics and measure items included in the plan. NAIOP believes the creation of the Control Board will provide greater accountability and transparency for the T’s governance and management practices and is critical to ensure a safe, reliable, fiscally stable, modern transit system for Massachusetts.

The budget also suspends the Pacheco Law for three years. The Pacheco Law requires a vetting process before privatization of services at the MBTA and, according to a report released today by the Pioneer Institute, it has cost the MBTA at least $450 million since 1997. NAIOP strongly supports this important reform.

The House and Senate are expected to approve the budget today and then it goes to Governor Baker for his review. He then has 10 days to review it review it before signing it and announcing amendments and vetoes.

NAIOP will continue to actively advocate for transportation reforms that support roads, bridges, public transit – and economic growth.