Volume II, Issue 4
3 Minutes on Permits 
Fall Issue 2009
Kevin J. Joyce, Attorney At Law-Permitting, Zoning & Real Estate Advisory Services 
Doherty Law Offices LLP-Boston, Massachusetts  
In This Issue
U. S. Approves Energy Grant Rules
State Approves "Stretch Energy Code"
BRA Proposes Zoning Amendment to Align Floodplains
Permits: Legal Cases, Special Permit Lapse and Zoning Density
Ocean Act of 2008
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Final Federal Renewable Energy Grant Rules Recently Published
U.S. Treasury Now Accepting Applications Under Section 1603 of the American Recovery And Reinvestment Act of 2009. 
 
On July 31, 2009, the United States Treasury issued an application form and published procedures for applying for the Renewable Energy Payment Grants created by Section 1603 of the American Recovery and Reinvestment Act of 2009 (the "ARRA").  The new application is electronic and can be completed online.  The accompanying documents include eligibility requirements, program terms, and forms for making the required certifications.  The documents also establish rules for calculating a project's cost basis and for assigning the Section 1603 payments awarded to banks and other financial institutions, including federal lending agencies.  
 
The rules, however, may not be clear in every instance and seeking clarification from the government may be warranted given the facts of a particular situation.  I plan to keep you informed of the latest clarifications and developments as the federal government continues to roll out the program.
 
In addition to publishing the new Section 1603 rules, the federal government has also announced the availability of $85 billion under the existing loan guarantee program for renewable energy projects administered by the Department of Energy and the Federal Financing Bank and up to $30 billion in additional loan funds for projects undertaken under the new program established by Section 1705 of the ARRA.  The eligibility criteria and guidelines for the new program are much the same as the eligibility and criteria specified for the existing program and continue to encourage consideration of guarantee structures that may fall outside traditional limited recourse financing so long as the project meets the objectives of the loan guarantee program.
 
For more information regarding the new programs that the ARRA has created, such as the expanded Investment Tax Credit ("ITC") program for renewable energy projects, you may refer to the Special Advisory Issue of 3 Minutes on Permits-Summer 2009, or you may contact me directly at kjj@dohertylawoffices.net.   
State Approves New Optional "Stretch Energy Code" 
Municipal Action Expected Soon. 
beach scene 
As authorized by the Green Communities Act signed by Governor Deval Patrick in 2008, the Massachusetts Board of Building Regulations and Standards (the "BBRS") has adopted an optional controversial state building code change, 780 CMR Appendix 120.AA  (the " stretch energy code") which became effective as of July 24, 2009.   Under the change any municipality in the state may now adopt the stricter minimum energy standards for buildings set forth in Appendix 120.AA after a local public hearing.  Any municipality that adopts Appendix 120.AA must also provide appropriate training to its building official before the concurrency period (when either the new appendix or the existing provisions of 780 CMR may be employed) begins.  
 
Appendix 120.AA is primarily based on the International Energy Conservation Code (IECC) 2009 which is supposed to become the state's base energy code in 2010.  The idea is that by mandating stricter minimum energy efficiency standards developers will be forced to adopt environmentally friendly building practices such as employing recycled materials and alternative energy sources on their own, thereby helping to reduce building energy costs by as much as 20% over the long term.  The adoption of the new Appendix is controversial because many developers believe that the requirement to use energy efficient materials and alternative energy sources will lead to significant increases in initial construction costs which in turn will lead to dramatic increases in home prices.   It is estimated that the the stretch code will increase energy efficiency standards 40% over what is currently required by the state building code. 
 
The stretch code does provide some exemptions for smaller buildings under 5,000 sq. ft. and larger specialty buildings such as laboratories and warehouses under 40,000 sq. ft.  I plan to keep my readers informed as implementation of the stretch code proceeds.
 
Proposed Amendment to Article 25 of the Zoning Code Aligns Floodplains with FEMA
 
Article 25 of the Boston Zoning Code outlines Flood Hazard Districts within Boston.  On August 4, 2009, the Boston Redevelopment Authority (BRA) issued proposed amendments to Article 25 in part to integrate the most recent flood maps compiled by the Federal Emergency Management Agency (FEMA).  The proposed amendment to Section 25-3 of the Zoning Code refers to flood hazard districts, also called special flood hazard areas, as a type of special purpose overlay district established pursuant to Section 3-1A of the Zoning Code.  These districts include all special flood hazard areas within Boston designated as Zone A, AE, AH, AO, A99, V, or VE and are shown on a series of map panels of the Suffolk County Flood Insurance Rate Map (FIRM), effective September 25, 2009, as issued by FEMA. 

It is imperative to review the new flood maps issued by FEMA to determine whether a particular flood zone has changed as a result of the new mapping.  A lender will require an owner of a residential or commercial structure in a special flood hazard area, who also has a federally-backed mortgage, to have flood insurance.  Flood maps and data are on file in the offices of the Building Department, the Conservation Commission, the Zoning Commission, and the Engineering Division of the Public Works Department, and may be accessed online at FEMA's website as data becomes available and after the flood hazard map is adopted, as required, to determine insurance rates.  We will continue to keep you updated on this developing issue. I encourage you to contact me if you have any questions regarding this proposed zoning amendment.

Permits: Legal Case Bulletins 
 
Zoning- Special Permit For Phased Condo Does Not Lapse

 
Plaintiffs appealed from a decision of a municipal planning board denying an application to modify a special permit that had been initially issued in 1985 for a four-phased condominium construction project.  The planning board deemed that the special permit had lapsed because, although phases I and II of the project had been completed, no further construction on the project had taken place since 1988.  Plaintiffs argued that, because construction of phases I and II of the project commenced within the town's applicable one-year lapse period, the special permit is still viable even though there has been no construction since 1988.
RULING:  The Supreme Judicial Court held for the plaintiffs, ruling that, although construction had been stalled for approximately 20 years, the special permit had not lapsed because construction for phases I and II had commenced within the one year period as required by the town's bylaws.  The two-year lapse period set forth in G. L. c. 40A, 9, and in parallel municipal bylaws are meant to prevent the indefinite warehousing of special permits.  The Court opined that municipalities concerned about lengthy delays in phased construction projects can alleviate such concerns by including an express time limitation as a condition of approval of a special permit for phased construction projects.
LOBISSER BUILDING CORP. V. PLANNING BOARD OF BELLINGHAM (June 2009)
 
Abutter's Standing, "Person Aggrieved" In Dense Or Overcrowded Neighborhood
 
Property owner was granted zoning variances from the city to build a new three-story house, which is substantially larger in size than the single story house that had previously existed on the property and is situated in a densely crowded neighborhood.  Abutting neighbor appealed the variances, arguing that the size and location of the new house (14 feet from the abutter's house) had caused the abutter to be "boxed in," depriving the abutter of privacy, light, decreased rental property value, and increased noise and risk of fire.  The trial court dismissed the abutter's appeal for lack of standing, finding that the existing density of the neighborhood already limits much of the privacy available to the abutter.
RULING:  The Appeals Court found that the trial court had erred in concluding that the abutter lacked standing and held that the existing overcrowding or density of a neighborhood is not a ground for reducing an abutter's right to protect remaining privacy.  The crowding of an abutter's residential property by violating density provisions of a zoning by-law will generally constitute harm sufficient to qualify the abutter as a "person aggrieved" and entitles the abutter to maintain a zoning appeal.
SHEPPARD V. ZONING BOARD OF APPEAL OF BOSTON (April 2009)
 


Ocean Act of 2008  
 
Scheduled to Launch 12/31/09
 
beach scene
On May 28, 2008, Governor Deval Patrick signed into law Chapter 114 of the Acts of 2008, commonly referred to as the "Ocean Act of 2008."  The purpose of this landmark legislation is to more effectively manage the ocean ecosystems that are vital to the Commonwealth's maritime heritage and economic viability.  Massachusetts is unique in that it is first in the nation to craft such a state-wide comprehensive ocean planning law that requires a balance among ocean projects (such as offshore renewable energy development, fishing, maritime transport, recreation, and conservation) through a consideration of stakeholder needs and scientific principles.
 
On July 1, 2009, in accord with the Ocean Act, Energy and Environmental Affairs Secretary Ian Bowles released the first draft comprehensive ocean management plan for public review and comment.  The current draft plan provides for additional protections for critical environmental resources in coastal waters at least 0.3 nautical miles seaward of mean high water and extending to the 3-mile limit of state control.  The draft plan also establishes three management categories, i.e., prohibited areas, multi-use areas, and renewable energy areas, and applies them to Massachusetts ocean waters. 
 
The Ocean Act further provides for the Energy and Environmental Affairs Secretary, in consultation with the Massachusetts Department of Environmental Protection, to administer a fund to be known as the Ocean Resources and Waterways Trust Fund.  The funds derived from compensation or mitigation for ocean development projects will be used to restore or enhance marine habitat and resources that are impacted by the project for which the compensation or mitigation was received.  We will continue to keep you updated on this issue, as the final plan is due to be promulgated by December 31, 2009.  I encourage you to contact me if you have any questions regarding the latest draft plan.  

I hope that you like this new paperless format of 3 Minutes On Permits.  Subsequent issues of this publication will now be sent electronically in an effort to do our part to make the Earth a greener place.  
 
Sincerely,
 
 
 
Kevin J. Joyce 
 
Kevin J. Joyce is a former City of Boston Inspectional Services Department Commissioner and Assistant Corporation Counsel.  He is currently a member of the Real Estate Bar Association of Massachusetts (REBA), the Boston Bar Association, the Builders Association of Greater Boston (BAGB) and the National Fire Protection Association (NFPA).  Also a Title Insurance Agent with Connecticut Attorneys Title Insurance Company (CATIC), Mr. Joyce concentrates his practice on complex zoning, permitting and real estate transaction matters in Massachusetts.
 
"ADVERTISING" This newsletter is intended to keep you informed of recent developments in the general aspects of real estate law.  The information contained in 3 Minutes On Permits does not constitute legal advice and it should not be relied on without a discussion of your specific situation with an attorney of your choice.  3 Minutes On Permits is an occasional informational service provided by Kevin J. Joyce, Esq. and as such it is required to be labeled "Advertising" by SJC Rule 3:07.