Massachusetts Environmental Developments

Multi-Sector General Permit for Stormwater Discharges – Newly Issued and Newly Challenged

U.S. EPA issued a new Multi-Sector General Permit for Stormwater Discharges from Industrial Activities on June 4, 2015, replacing the 2008 general permit, which expired in September 2013 and had been administratively continued for covered facilities pending reissuance. Shortly after issuance, the new permit was challenged by several environmental groups, which filed separate petitions for review in three different U.S. Courts of Appeals.

EPA’s MSGP applies to approximately 30 industrial sectors in the few areas of the country where EPA (rather than the relevant state) remains the NPDES permitting authority, including in Massachusetts and New Hampshire.

Facilities covered under the 2008 MSGP must update their stormwater pollution prevention plans known as SWPPPs and submit new notices of intent (NOIs) by no later than September 2, 2015, to obtain authorization under the 2015 MSGP. The new permit remains in effect in spite of the pending appeals.

The requirements of the 2015 MSGP are largely similar to those of the 2008 MSGP, with some modifications and additions. Among other changes:

• Electronic reporting is now required. This includes electronic submission of NOIs, annual reports, and monitoring reports.
• Revised step-by-step procedures have been incorporated for making eligibility determinations for threatened and endangered species and critical habitat.
• Dischargers must provide public access to facility SWPPPs, either by posting the document to the internet and providing the web address on the NOI form or by including certain information on the NOI form.
• Streamlined inspection procedures no longer require annual comprehensive site inspections.
• For facilities that discharge to saline waters, new non-hardness dependent benchmarks for metals have been added.
• A more prescriptive set of corrective action requirements and deadlines have been included in response to certain events.
• Revised provisions have been incorporated for coverage of certain earth-disturbing activities associated with construction and exploration for the metal, coal, and mineral mining sectors.

The environmental groups that challenged the 2015 MSGP have not yet filed specific objections to the permit terms. Trade press speculation suggests that the groups will pursue some of the positions they advocated in comments filed on the draft permit in 2013, including seeking a national effluent limitation guidelines for stormwater discharges, setting specific numeric limits for discharges authorized by the permit, and seeking mandates for specific controls as best management practices required by the permit.

Massachusetts Issues Guidance on Addressing 1,4 Dioxane Sites

MassDEP issued a fact sheet in June identifying special considerations for responding to releases of 1,4-dioxane, which was primarily used as a stabilizer and corrosion inhibitor as an additive to chlorinated solvents but can also be erroneously detected because of its use in environmental sampling.

Dioxane is not found naturally in the environment and has been classified by EPA as a likely human carcinogen, and can harm the human nervous system, liver, and kidney. Exposure is typically through ingestion of contaminated water.

MassDEP has found that dioxane is typically found at contaminated sites co-located with trichloroethylene or 1,1,1-trichlorethane. However, it is still manufactured today and used in many products including cosmetics, shampoos, and other personal care products as well as pharmaceuticals. As a result, it may be released into the environment through wastewater systems and septic systems. Further, dioxane is often used in the development of groundwater monitoring wells and as a surfactant to decontaminate environmental sampling equipment. Thus, dioxane may be detected at a site in error.

The MassDEP fact sheet suggests that groundwater sampling and analysis for dioxane is appropriate at locations with certain types of historic or current operations: use or manufacture of chlorinated solvents, laboratories where dioxane may have been used as a reagent, landfills, military sites where chlorinated solvents were used, and airports that have used de-icing fluids.

In addition, the fact sheet describes special analytical techniques that should be used to evaluate dioxane at appropriate detection levels. Because dioxane may be used to decontaminate sampling equipment, MassDEP also suggests taking additional quality control samples to ensure that residual dioxane on sampling equipment is not erroneously identified as site-related.

Finally, the fact sheet suggests that, because dioxane may move further in groundwater than the chlorinated solvents, sampling for dioxane should occur beyond the identified chlorinated solvent plume in order to identify the leading edge of the dioxane plume. This evaluation may be complicated because “household/consumer products such as shampoos and detergents are known to contain high levels of 1,4-dioxane and can enter the environment through wastewater treatment plants and septic systems, assessment activities should ascertain where relevant, whether the source of 1,4-dioxane is from a release regulated under the [site cleanup program] or from other sources, such as septic systems.”

RMP and General Duty Clause Enforcement Continues at EPA Region 1

As we reported last year, the U.S. EPA has stepped up its enforcement activity under the risk management provisions of the Clean Air Act (CAA), Section 112(r), focusing on both the Risk Management Plan (RMP) program rules and the General Duty Clause (GDC). The RMP requirements help prevent accidental releases of substances that can cause serious harm to the public and environment from short-term exposures and also help reduce the severity of releases that do occur. Background on these programs is available in our prior article.

EPA had historically received a fair amount of criticism, both internally through its Office of Inspector General (see March 28, 2012, March 21, 2013, and April 28, 2014 reports) and externally through various interest groups, as a result of sporadic and somewhat clumsy efforts to enforce RMP and GDC requirements. The agency has responded vigorously, and in recent months there has been a substantial increase in enforcement activity in this area. Beveridge & Diamond has been involved in enforcement responses on many cases in this area in the past several years.

This article focuses on a few significant enforcement actions brought recently by EPA Region 1, which has not historically devoted significant efforts to risk management enforcement but is now joining other EPA regions by becoming more active in this area. The first case highlights a parallel prosecution in which EPA appears to have referred part of a case for criminal enforcement and retained the rest of the case for administrative disposition, and the second case involves a more traditional administrative enforcement.

Parallel Prosecution

A criminal action by the U.S. Department of Justice (DOJ) and an administrative action by EPA Region 1 were recently resolved against Mann Distribution, LLC for violations of CAA § 112(r). Both actions refer back to a June 2009 EPA compliance inspection of Mann’s chemical distribution, packaging, and warehousing facility in Warwick, Rhode Island. At that time, EPA inspectors determined that approximately 46,000 pounds of hydrofluoric acid were being stored on site.

The enforcement activity arising from the 2009 inspection was unusual. The case split into criminal and civil administrative components: EPA issued a Notice of Violation, Administrative Order, and Reporting Requirement in August 2009, and then DOJ pursued a criminal case against Mann for failing to develop and implement a Risk Management Plan under CAA § 112(r)(7). Based on several other inspections and events from 2009 through early 2014, EPA later pursued additional civil administrative remedies for alleged violations of the GDC under CAA § 112(r)(1) and some unrelated hazardous waste management issues.

In the DOJ criminal enforcement case, Mann pled guilty this Spring to violating CAA § 112(r)(7) for failing to develop and implement a Risk Management Plan when it stored more than the threshold quantity of 1,000 pounds of hydrofluoric acid at its facility. See U.S. v. Mann Distribution, LLC, 1:15-cr-00029-ML-LDA (D. R.I. 2015). On May 6, 2015, the U.S. District Court of Rhode Island sentenced the company to a $200,000 fine, placed it on probation for a term of three years, and required the company to publish a public apology within 30 days. As part of the plea agreement with the DOJ, Mann also agreed to comply with the requirements of the related Administrative Order on Consent (AOC) it entered into with EPA Region 1 in March 2015. See In the Matter of Mann Distribution LLC and 3134 Post LLC, CAA-01-2015-0029 (Mar. 13, 2015).

In the EPA Region 1 civil administrative enforcement case, which concluded with the execution of the AOC, EPA started with the June 2009 inspection, and then conducted a series of additional inspections through 2013, and also evaluated two unrelated release events. One of those events involved a chemical reaction triggered by the combination of incompatible chemicals in a container, and the other event involved a 200-gallon spill of sulfuric acid, of which five gallons entered Apponguag Cove.

EPA alleged multiple violations of the GDC based on the 2013 inspection findings in addition to hazardous waste violations under RCRA. The agency alleged that Mann failed to design and maintain a safe facility in violation of the GDC by, among other reasons:

• Storing chemicals without an operational fire suppression system.
• Failing to timely inspect the fire alarm system.
• Storing incompatible chemicals in close proximity to one another.

EPA also alleged that Mann failed to minimize the consequences of releases and jeopardized the health and safety of employees, in violation of the GDC, in part by failing to timely alert emergency responders of the sulfuric acid spill and failing to provide secondary containment for the sulfuric acid. Under the AOC, Mann is required to take corrective action under a compliance schedule and is subject to stipulated penalties for any further noncompliance.

Administrative Enforcement

A compliance inspection was also the basis of an EPA Region 1 enforcement action against Precise Packaging, LLC’s liquid and aerosol filling facility located in Fall River, Massachusetts. Much like Mann, Precise allegedly failed to document and implement an RMP for several years after first exceeding the regulatory thresholds for several regulated substances. Precise stores and processes more than 25,000 pounds of 1,1 difluoroethane, propane, butane and isobutane, and their mixtures. These flammable gasses are all covered under the RMP program.

An inspection conducted by EPA in April 2013 resulted in a determination that the facility did not have an RMP and certain other safety procedures in place. A reinspection by EPA six months later found that the facility still did not have a completed RMP and had not put all previously identified safety measures in place. EPA issued an Administrative Compliance Order in July 2014 directing the facility to complete and implement all aspects of the RMP program, at an estimated total compliance cost of $118,000. A Consent Agreement and Final Order (CAFO) issued April 2015 resolved Precise’s penalty liability for the alleged violations. Precise agreed to pay a $57,369 civil penalty and implement a supplemental environmental project (SEP) worth $147,625. As part of the SEP, Precise has agreed to purchase emergency response and planning equipment for the City of Fall River. This equipment will enhance the Fire Department’s ability to respond to and prepare for emergencies involving hazardous chemicals. The CAFO notes that Precise recently participated in and performed satisfactorily in a chemical response “table-top exercise” with the City’s Fire Department.

EPA Region 1 is stepping up its enforcement response to risk management program issues that it identifies from inspections and from release incidents, and – consistent with the national trend - facilities in Region 1 will likely see a continued enforcement focus in this area. Consequently, companies managing materials regulated under Section 112(r) of the Clean Air Act should pay close attention to RMP applicability requirements and to identifying hazards and implementing appropriate measures to reduce the likelihood and consequences of releases.

Public Records in Massachusetts: Legislature looks to Improve Access and Top Court Clarifies Attorney-Client and Work-Product Protections

The combined efforts of Massachusetts’ highest court, its legislature, and the Governor’s office are clarifying and modernizing Massachusetts public records law, which is considered by some to be one of the weakest in the country. Pending legislation could change that, making it easier to obtain records and enforce the law’s provisions. At the same time, a recent decision of the Supreme Judicial Court of Massachusetts clarifies the scope of the “policy deliberation” exemption to Massachusetts’ public records law and the applicability of the attorney-client privilege and work-product doctrine. Governor Charlie Baker recently weighed in as well, with new procedures aimed at increasing transparency and streamlining responses to public records requests. These developments may have a significant impact on citizens, businesses, municipalities, and litigants.

The Massachusetts Public Records Law, M.G.L. c. 66, § 10, was passed contemporaneously with the better known federal Freedom of Information Act, in 1966. Both FOIA and the Massachusetts law were last significantly updated in the early 1970s. The Massachusetts law applies to records made or received by a Massachusetts governmental entity and sets forth procedures that allow any member of the public to request those records, subject to a few exemptions. The law encompasses records created or received by any state agency or political subdivision (such as towns and cities) but excludes the legislative and judicial branches.

FOIA and the Massachusetts Public Records Law were both designed to improve public access to information, as part of a wave of “open government” reforms that took place several decades ago. But Massachusetts has a long history of frustrating attempts to access public records with exorbitant fees and lengthy waits. The State Integrity Project gives Massachusetts an “F” for its access to public information, and in June 2015, Investigative Reporters and Editors named the Massachusetts State Police as the winner of its “Golden Padlock Award,” which recognizes the most secretive U.S. agency or individual. The ACLU and Boston Globe have both reported on the law’s failings for years, documenting high fees and long delays. In its July 18 edition, the Boston Globe reported the experience of a Taunton attorney who sought breath-alcohol data from multiple states. Three states offered the data for free, and another for $75. The price for the same data in Massachusetts? About $2.7 million. These costs shield agencies from public scrutiny, hamper litigation, and frustrate justice.

Faced with public outcry over the situation, it appears that the Massachusetts Legislature may take action. On July 15, a bill emerged from a joint House-Senate committee on State Administration and Regulatory Oversight that would significantly revamp the Massachusetts Public Records Law (Bill H.3665). Among other things, the proposed bill would:

• Cap fees for certain public records.
• Make it easier for requesters to get documents electronically.
• Require each agency to designate “records access officers” to handle requests, with a similar provision for cities and towns.
• Give agencies a little more time to respond to requests (15 days instead of 10).
• Impose fines for refusal or neglect in providing public records.
• Give public records cases priority over other proceedings in state courts.
• Grant attorney’s fees to requesters who were wrongfully prevented from obtaining public records.

These provisions would help to cap fees, improve responsiveness, and give some “teeth” to the public records law. But while open-government advocacy organizations laud the changes, municipalities are concerned about the impact and have raised concerns over an “unfunded mandate” imposed on towns and cities. Next, the bill heads to the House Ways and Means committee. Although there were early indications of support in both the House and Senate, the House decided to wait until later this year to vote on the bill, citing complaints from cities and towns that the new rules would be expensive to implement.

The judiciary also recently weighed in on access to public records in Massachusetts, providing protection for certain types of public records sought by a party during litigation. On May 15, 2015, the Supreme Judicial Court issued an interlocutory order in John DaRosa, v. City of New Bedford, 471 Mass. 446 (2015). The underlying case involves a dispute over liability for environmental cleanup costs resulting from soil contamination. Property owners alleged that the city of New Bedford operated a nearby site as a dump for industrial and other waste. Seeking costs and damages related to the contamination, the property owners sued the city in 2008. The city solicitor retained an environmental consulting firm, TRC Environmental Corporation, to assess issues related to the claims and identify potential sources of contamination. Next, in 2009, the city filed multiple third-party complaints seeking damages and cost recovery from multiple third-party defendants.

During discovery, various third-party defendants requested documents from the city that were created by TRC Environmental during its investigation of the site. The city claimed that such documents were subject to attorney-client privilege and/or work-product protections and declined to produce them. Third-party defendants objected and asked the court to compel the city to produce the TRC documents. The Superior Court sided with the third-party defendants and ordered the documents produced. The city sought an interlocutory appeal, and the SJC reversed, ruling that certain public records are subject to the attorney-client privilege and work product protections and are not subject to disclosure.

The SJC decision rests heavily on a re-interpretation of the Massachusetts public records law and its prior decision in General Electric Co. v. DEP, 429 Mass. 798 (1999), which had held that there are no “implied exemptions” to the Massachusetts public records act. The court re-examined the text and historical context of Massachusetts’ public records law, along with the scope of the “policy deliberation” exemption. Comparing the Massachusetts law to FOIA, the court reasoned that the purpose of the policy deliberation exemption in both statutes is to allow a frank, internal discourse on legal and policy matters. When an agency is engaged in litigation, the court reasoned, documents discussing “litigation strategy and case preparation fall within the rubric of ‘policy deliberation.’” As a result, the court held that public records in the form of opinion work product created in preparation or pendency of litigation are protected from disclosure, along with draft reports and other such documents that are not “reasonably complete.”

The court went on to draw more nuanced distinctions for fact work product, noting that while a party may be compelled to produce a “reasonably completed factual study or report,” portions of that report interwoven with opinion or analysis may be exempt from discovery. Finally, the court held that there is no need for parties to obtain such information through a public records request – the ordinary avenues of discovery are sufficient. And by corollary, the court extended its protections to records sought through public records requests, as opposed to during litigation.

After DaRosa, public records in Massachusetts will have both attorney-client and work-product protections similar to those that have historically applied to private party documents during litigation under rule 26(b)(3). Importantly, public records will also have such protections outside of litigation. But in both cases, the public and litigants are still entitled to obtain “reasonably completed factual studies or reports.” Pending legislation, as currently drafted, would not affect the Supreme Judicial Court’s decision to grant attorney-client and work product protections to certain public records. Rather, the court’s recent decision and the legislature’s proposed changes would work in concert to enhance public access to information while protecting certain documents prepared with an eye towards litigation.

It will take time for DaRosa to play out and Bill H.3665 to work its way through the legislative chambers. In the meantime, Governor Baker has taken action with a more immediate effect. On July 30, 2015, the Governor’s Office announced new public records procedures for state agencies. According to the Governor’s press release, the new procedures will help to lower costs and streamline responses by state agencies to public records requests. Specific actions include:

• Secretariats and agencies are required to designate a Records Access Officer to receive, and coordinate requests, as well as assure compliance with the public records law.
• Notification within five days that a request will take more than 10 days and/or $10 to produce.
• A goal of fulfilling requests in “no more than eight weeks” with extensions “being explained to a requester in writing.”
• Agencies will regularly make frequently requested records available on their websites, in electronic, searchable formats when possible.
• Search and retrieval fees waived for standard public records requests.
• First four hours of work on more complex requests provided at no charge, then at no more than $25 per hour.
• Standardized production costs across agencies, including no charge for electronic copies and the first four “precisely defined” documents, 10 cents per page for black and white hard copies, and 50 cents per page for color copies.

The Governor’s actions mirror some, but not all, of the policies laid out in pending legislation and may provide some short-term relief to those requesting public records in Massachusetts. Not to be overshadowed, Secretary of State William Galvin filed a ballot initiative to strengthen the public records law, following through on a campaign promise. Along with the court’s decision in DaRosa and proposed Bill H.3665, the Governor’s action and the possible ballot initiative are welcome improvements to an outdated law that should help to level the public records playing field in Massachusetts.

Massachusetts Land Use Developments

Massachusetts Issues Draft Interim Policy on Re-Use of Soil for Large Reclamation Projects

After nearly a year of evaluation, MassDEP has issued a draft policy requiring an Administrative Consent Order (ACO) for large-scale projects that fill or reclaim quarries, sand pits, and gravel pits. Comments on the policy were due June 17, 2015. This effort has been driven by a requirement in the fiscal year 2015 budget that required MassDEP to develop a policy for such projects by June 30, 2015. Large fill projects that do not involve quarries, sand pits, and gravel pits are not covered by this draft policy.

As drafted, the interim policy will apply to any project “commenced or expanded” after the effective date of the policy that is expected to accept 100,000 cubic yards or more of soil in order to reclaim or fill a quarry, gravel pit, or sand pit. Many of the comments received by MassDEP relate to the applicability of the policy. In discussing these comments at the June 25, 2015 Bureau of Waste Site Cleanup Advisory Committee Meeting, MassDEP suggested that the word “expanded” may be given a broad interpretation or possibly MassDEP may change this wording so that all such projects – even those currently in operation – fall within the policy, after some kind of transition period.

Under the policy, MassDEP will require such projects to obtain an ACO that would, according to MassDEP, ensure that this reuse of large volumes of soil would pose no significant risk of harm to health, safety, public welfare or the environment, and would not create a new release of oil or hazardous materials requiring cleanup under the state site cleanup program. MassDEP has indicated that its long-term goal is to develop regulations addressing these projects; at that time, the interim policy will be superseded.

According to the policy, among MassDEP’s considerations in approving an ACO are:

• The amount of solid waste in the soil: MassDEP expects such projects to contain no more than de minimis quantities of solid waste.
• The amount of oil or hazardous materials in the soil: MassDEP will review data on oil or hazard material constituents in the fill material as well as the nature of the receiving location and surrounding area.
• Awareness in the local community: MassDEP will consider whether any required local permits or approvals have been obtained, whether local officials and boards have been notified, and any steps taken to solicit input from local officials.
• Impacts on the local community: MassDEP will not finalize an ACO “unless and until all comments on project impacts related to noise, dust, odor and/or trucks have been appropriately addressed by the proponent.

The policy also indicates that an ACO entered into under this policy will contain certain elements, including a detailed soil and fill management plan, a detailed stormwater management plan, provisions governing impact to wetlands (if relevant), a plan for communication with the public at key points during the project, oversight by an LSP or other qualified third party, and stipulated penalties for failing to comply with the order.

This policy is limited to projects that fill a quarry, gravel pit, or sand pit and therefore will not apply to the vast majority of projects that involve reuse of soil. MassDEP is currently evaluating developing regulations or guidance for these other projects.

Flushing Out the Safe Harbor: “General Land Area Minimum” Offers Newton No 40B Shelter

Municipalities long unable to achieve ten percent affordable housing are now turning more frequently to a different Safe Harbor to block the development of low and moderate income housing – compliance with the “General Land Area Minimum” of Chapter 40B’s affordable housing regulations. In its first detailed ruling on the topic, the Housing Appeals Committee (HAC) expanded the denominator (municipality’s total land area) and shrank the numerator (total land area occupied by eligible affordable sites) leaving the City of Newton floating outside of this 40B Safe Harbor and facing a Comprehensive Permit application for a 135-unit affordable housing project. As demonstrated in In the Matter of Newton Zoning Board of Appeals and Dinosaur Rowe, LLC, HAC No. 15-01, with the burden of proof squarely on municipalities to prove compliance with the “General Land Area Minimum,” cities and towns face significant challenges qualifying for this Safe Harbor.

In the Matter of Newton Zoning Board of Appeals and Dinosaur Rowe, LLC, Housing Appeals Committee (HAC), No. 15-01, concerns an affordable mixed-income rental project on a 2.5-acre lot proposed by Dinosaur Rowe, LLC. After the developer filed its application on November 5, 2014, and the Board opened the public hearing, the Board notified the Dinosaur Rowe on December 18, 2014, that the City had achieved the Safe Harbor available to municipalities that have met the general land area minimum. That is, Newton claimed that eligible low or moderate income housing now existed on sites “comprising more than 1½% of the total land area zoned for residential, commercial, or industrial use….” The developer appealed to the Department of Housing and Community Development (DHCD), which issued a decision on January 23, 2015 finding in favor of the Developer. On February 12, 2015, the Board appealed to HAC which issued its “Interlocutory Decision Regarding Safe Harbor” a little over four months later on June 26, 2015.

The Expanding Denominator

In municipalities where the 1.5 percent threshold has been met, any decision, including the denial of an affordable housing project, made by the local board of appeals is “consistent with local needs and thus unassailable as a matter of law.” The 1.5 percent General Land Area Minimum is calculated by dividing the area of affordable housing sites that are eligible to be inventoried on the Subsidized Housing Inventory (SHI) of the DHCD (the numerator) by the total land area in the city that is zoned for residential, commercial, or industrial use (the denominator).

The Comprehensive Permit regulations specify what land is to be included and excluded from the denominator. Here, the parties largely agreed upon the total area calculated by the City (7,901.3 acres). From this number, Government-owned land (55.0 acres), wetlands on which development has been prohibited by restrictive order of the MassDEP pursuant to G.L. c. 131, § 40A (83.5 acres), water bodies (238.1 acres), and land in a “flood plain [zone], conservation zone or open space zone, if said zone completely prohibits residential, commercial [and] industrial use” (352.4 acres) were excluded without objection by Dinosaur Rowe. An additional 2.6 acres was added, not subtracted, by agreement due to certain duplications.

The parties were divided, however, over the Board’s attempt to exclude 539.8 acres of land on three private golf clubs. Although zoned single-family residential, the Board justified the exclusion of the land on the grounds that it had “been classified by the Board of Assessors of the City of Newton as open space and recreation land” under Massachusetts General Laws Chapter 61B. HAC rejected the attempt to exclude so-called “Chapter Lands” – lands under-recorded restrictions devoted to agricultural, conservation, open space or recreational purposes in exchange for tax breaks – from the total land area denominator notwithstanding DHCD’s interpretation to the contrary. HAC concluded that even though “this land will be used for quite some time for golf… the owners … could develop it for housing at any time” by paying a roll-back taxes and allowing the municipality to exercise its statutory right of first refusal to purchase. Newton’s total land area denominator of 6,609.2 acres was increased by HAC by 539.8 acres to 7,149 acres.

The Shrinking Numerator

The numerator of the percentage calculation consists of inventoried and un-inventoried sites. The former are sites on DHCD’s SHI. The latter is made up of sites “established according to [the Comprehensive Permit regulations] as occupied, available for occupancy, or under permit as of the date of the Applicant's initial submission to the Board.” The Board offered proof that slightly over 100 acres should be counted in the numerator and the developer challenged a number of the sites. The Board provided a spreadsheet of DHCD-Inventoried Sites of nearly 100 housing developments resulting in 93.4 total countable acres. The developer challenged two, both successfully. HAC reduced the land area associated with a mixed-use development with an affordable rental component. Where 28 single-room-occupancy apartments represented less than 11 percent of the gross building area on a roughly 6-acre site, HAC reduced the inventoried area by 5.4 acres from 6.1 to 0.7 acres. HAC also shrank the inventoried land area for at an affordable rental housing site that included facilities for Massachusetts Bay Transit Authority (MBTA) commuters. Since the developer controlled approximately 3.9 acres of the 6.9 site under a long term lease, the 3 acres controlled by the MBTA were eliminated from the numerator. Together, this reduced the countable inventory sites from the Board’s 93.4 acres to a more modest 85 acres.

Next, the Board sought to include several un-inventoried sites in the numerator totaling 11.5 acres. The parties did agree to include 0.3 acres for a 9-unit project but were divided over several other sites. First, HAC agreed with the developer to discount a 3.9-acre project. HAC rejected inclusion of this land area because at the time the Dinosaur Rowe’s Comprehensive Permit application was filed (November, 2014), that project was not eligible to be counted towards the SHI since more than one year had elapsed since the issuance of the project’s special permit without the issuance of the building permit. It was irrelevant that that building permit later issued in February 2015 and was in effect at the time of the HAC appeal: The 40B regulations look to the date of application to determine inventory-eligible projects.

Second, the Board also argued that un-inventoried sites should include 7.3 acres representing 39 group homes for people with disabilities and deed-restricted units rehabilitated under the HOME Investment Partnerships Program or administered by the Newton Community Development Authority. The developer specifically challenged four projects. First, with regard to a five-unit group home, Dinosaur Rowe argued that its 0.3 acres should be deducted since it lacks evidence of an affordable housing deed rider or fair housing marketing plan. The Board’s response – the group home serves individuals with special needs, is a non-profit, tax-exempt organization created as part of a settlement – was deemed insufficient by HAC and the 0.3 acres was subtracted. Second, the developer made the same argument regarding another group home on a 0.3-acre site. Again, the Board’s response – the facility operates as a group home for disabled individuals – was insufficient to meet its burden of proof and the 0.3 acres was deducted. Third, HAC eliminated another 1.4 acres for a project allowed by special permit from the Newton Board of Appeals. Despite the fact that the permit was conditioned on the “dedicat[ion of ] at least ten units… for low-income persons as defined by HUD income standards and at least ten units with services for moderate income persons,” HAC found the City failed to meet its burden of proof where, among other things, no state or federal subsidy program was identified and there was no proof the City had qualified the units as Local Initiative Units. Finally, where the Board offered a deed rider for one project when challenged, HAC allowed its 0.2 acres to remain included in the Board's figure. In total, HAC reduced Newton’s total un-inventoried sites by 5.9 acres from 11.05 to 5.6 acres.

Faced with the burden of proof, the Board failed to convince HAC on several scores. In total, HAC shrank Newton’s proposed numerator by roughly 13 percent or 13.85 acres from 104.45 to 90.46 acres and increased Newton’s proposed denominator by approximately 8 percent or 539.8 acres from 6,609.2 to 7,149 acres. Rather than exceeding the General Land Area Minimum of 1.5 percent, Newton’s calculation of 1.58 percent was ratcheted back to 1.26 percent by HAC leaving the Board to consider the 135-unit 40B project on the merits or further appeal the matter to the courts. Although the “General Land Area Minimum” Safe Harbor is at the disposal of cities and towns, their burden of proof to demonstrate compliance with each and every component of the numerator and denominator and meet the 1.5 percent threshold ensures that it will not be easily met.

Beveridge & Diamond's Municipal and State Governments industry group helps municipalities navigate the various federal and state regulations that govern their operations. We help guide municipalities through complex project development and permitting processes, interactions with the federal government, and environmental and natural resource litigation. For more information, please contact the authors.