December 2019
MassDEP Proposes to Amend Wetlands Regulations
On November 29, the MassDEP opened Public Comment on several proposed amendments to the State Wetlands Protection Regulations, 310 CMR 10.00 , principally in response to recent MassDEP Adjudicatory Decisions involving the “Date of Issuance” and abutter standing. First, to ensure that the MassDEP receives timely notice of Orders issued, MassDEP proposes to amend 310 CMR 10.05(3)(b) and (6)(e) to require conservation commissions to submit Orders and Determinations to the Department through eDEP , or by certified mail, return receipt requested. MassDEP proposes to amend the definition of “Date of Issuance” in 310 CMR 10.04 to align it with the new delivery requirements, and to clarify issuance of the Department’s superseding orders and determinations. Second, the MassDEP intends to amend 310 CMR 10.05(4)(a) to clarify that receiving notice of a Notice of Intent (NOI) as an abutter does not automatically confer standing on that person to appeal orders regarding the project. Lastly, the MassDEP is proposing to amend the regulations to reference the most recent plant list, titled State of Massachusetts 2016 Wetland Plant List (published by the U.S. Army Corps of Engineers, 2016). This includes region-specific information and is the authoritative list used by local, state, and federal entities and other stakeholders. According to the MassDEP, the adoption of the 2016 national plant list will align the wetland regulations with current science, create consistent application of wetland regulations, remove confusion among local conservation commissions, state and federal agencies, the regulated community, and the public, while maintaining the plant species referenced in the Act.

Public hearings on the proposed regulations, under the provisions of M.G.L. Chapter 30, will be conducted at MassDEP’s Central Regional Office in Worcester on January 8, 2020, and Boston Headquarters on January 9, 2020. For more information, please check here .

BBRS Facing Pressure to Adopt a Zero Net Energy Code
On November 5, the Massachusetts Board of Building Regulations and Standards (BBRS) held the second of two public hearings designed to accept public comments on the State Building Code . The main topic for the Public Hearing was the proposal for a Net Zero Energy Code. Overall, the testimonies for and against were closer to being equal than what is typically seen. The arguments in favor of a Net Zero Energy Code, and more specifically, a Net Zero Stretch Code, suggested the implementation of these requirements represents “the greatest single opportunity to support reduced building emissions in Massachusetts.” Those opposed to the Net Zero Stretch Code suggest the adoption of such a code is a de-facto ban on fossil fuels.

In addition to HBRAMA expressing it’s opposition to such a code are NAIOP, representatives of the propane industry, the Hearth, the Patio & Barbecue Association, and the Chimney Sweep Guild. HBRAMA thanks Guy Webb, Andy Crane, David DeGeorge, Emerson Claus, and Paul Moriarty for participating in this important hearing, as well as BBRS Member Michael McDowell, in mounting opposition to the Net Zero Energy Code proposal. Mr. McDowell represents HBRAMA on the BBRS Board and was very helpful in picking apart some of the pro-net zero testimony. HBRAMA also thanks Guy Webb for providing this summary of the BBRS Hearing. 

Legislature Goes on Break Without Action on Housing Starts Bill

To the disappointment of the HBRAMA and other housing advocates, the Massachusetts Legislature broke for the remainder of 2019 without taking action on Governor’s Housing Choices Bill (H. 3507) . This historic legislation would enable cities and towns to adopt pro-housing zoning with a majority vote of a city council or town meeting, rather than the current 2/3rds supermajority. The bill appeared to be the victim of the crush to approve other measures (education reform, distracted driving legislation, a ban on flavored tobacco and vaping products, and a child wellness bill) by the end of formal sessions on November 20.

The Housing Choices Bill remains a top priority of the Baker-Polito Administration. Lt. Gov. Karyn Polito and Secretary of Housing and Economic Development Michael Kennealy continue to travel the state in an effort to build grassroots municipal support for its passage. HBRAMA will redouble its lobbying efforts in the new year as it works with its coalition partners, NAIOP, the Commercial Real Estate Association, the Massachusetts Municipal Association, the Massachusetts Association of Realtors, and the Greater Boston Real Estate Board, to secure enactment of the most important housing bill since the passage of Chapter 40B in 1969.

HBRAMA Zoning Bill Advances

A bill drafted and sponsored by the association to amend the Zoning Act (G.L. c.40A, §10) to provide that the one-year term to exercise the rights authorized by a variance does not include the time required to pursue or await the determination of an appeal of that variance, was recently recommended for passage by the Joint Committee on Municipalities and Regional Government. This legislation mirrors the tolling of the period to exercise the rights granted by a special permit while that permit is under appeal by the applicant or an abutter.

Many residential projects, whether a single-family house or a larger development, often require a variance for dimensional relief and the like. Abutters who are opposed to the project frequently challenge those variances. Senate Bill No. 1181, filed by Sen. Diana DiZoglio (D-Haverhill), would ensure that the time a builder has to exercise the rights granted by a variance is not lost while awaiting a decision by a court on that appeal.
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