UPDATE ON THE HOUSE BILL 1859, “AN ACT PROMOTING THE PLANNING AND DEVELOPMENT OF SUSTAINABLE COMMUNITIES”

Last week I attended a very informative but brief hour long lunch seminar updating the movement and changes to this bill as it winds its way through the Massachusetts Legislature.  Benjamin Fierro of Lynch and Fierro represented the Home Builders Association of Massachusetts and expressed a few of his concerns with elements of the bill, expressing his doubts that the bill would actually serve its main purpose of streamlining the permitting process in cities and towns.  Jay Wickersham represented the Massachusetts Smart Growth Alliance, along with Jeff Lacey fact checking from the audience at the end of the presentation, presenting his argument as to why this bill is better than the previous proposed amendments to 40A and cited the major advantages this would bring for both local developers and community residents alike.

Much of the debate focused on whether or not the proposed addition of a section 40Y would actually streamline some of the municipal permitting process as it’s mission plan states.  From the draft of the amendment, 40Y looks provide an opt-in measure for communities to charge smart growth impact fees to developers to further provide for sustainable community development while at the same time allowing for by-right housing and commercial development in smart-growth locations.

Another major section of debate is section 21 of the bill instituting Development Impact Fees.  These fees are commonly used across the country by municipalities to help defer the costs of necessary infrastructure that new and large scale development projects that often fall on strained community budgets.  Massachusetts has difficult case law surrounding these fees which has said that courts cannot allocate added school costs and additional municipal facilities expenses to developers as development impact fees.

The proposed legislation would aim to allow this type of impact fee to be imposed and cites advantages for both the community as a whole and the developer.  The argument that this is an advantage for a developer is that it provides greater good will in the community for the developer as well as avoiding long and costly special permitting processes by granting more as-of-right permits.

The final question of the day asked about the status of this bill as it moves through the Massachusetts Legislature.  It appears that an amended version of House Bill 1859 should be put to a vote before the end of this legislative session in the Spring of 2014.

If you’d like to read more about some of the other measures proposed in House Bill 1859, please see my previous blog which includes a summary written by one of the bills drafters, Jeff Lacey AICP.

I’d like to also thank the Boston Bar Association, Benjamin Fierro, Jay Wickersham and Johanna Schneider for another great BBA event.