Issue Two
- The length of Chapter 91 license terms varies dramatically resulting in time consuming and unproductive negotiations over the issue. This lack of predictability impairs marketability of the property and creates a significant barrier to the financing of major projects. To encourage long-term investment in developments which will revitalize urban waterfronts, this issue must be addressed.
- A proposed Department of Environmental Protection Water Transportation Policy requires non-water dependent projects in the Boston Harbor (i.e., properties which may be located on waterfront property, but do not rely on their close proximity to the water to exist) to give a financial contribution toward water transportation in the Boston Harbor in order to receive an extended license term. As currently proposed, this Policy is inconsistent with Chapter 91 in a variety of respects. In addition to other concerning issues, the Policy inappropriately places on individual property owners the cost of operation of public water transportation facilities, a cost which should be paid for by fares and taxpayer support.
NAIOP Solution:
- All new non-water Chapter 91 licenses should be presumed to have a term of 99 years. Existing licenses should be presumed to be renewed for a 99-year term, subject to a DEP review ensuring that the licensee is in compliance with necessary regulations. A set fee for all licenses must be determined and no additional charge for extended terms should be made, whether for water transportation or otherwise.
- The DEP draft Water Transportation Policy for Boston Harbor should be withdrawn. An alternative policy should be prepared which allows for a variety of options to satisfy the Chapter 91 waterfront activation requirements.
Issue Three
- Chapter 91 creates overly-complicated zoning-like restrictions on properties adjacent to the water. Currently, all of the ground floor of a waterfront property located in so-called “Commonwealth Tidelands” must be reserved for public use (“facilities of public accommodation” or “FPAs”). This policy is enforced regardless of land use, density, location and proximity to street and pedestrian traffic. Many ground floor areas licensed for facilities of public accommodation are currently vacant or have had trouble attracting successful users. Except for hotels, which are defacto public accommodations, no non-maritime project built in the past fifteen years in the City of Boston has successfully achieved the FPA requirements provided for in the current Chapter 91 regulations. If such projects cannot be successful in downtown Boston, then they have little chance of succeeding in Boston’s neighborhoods or in other coastal cities and towns. This policy ignores market realities and common-sense land use planning.
NAIOP Solution:
- Allow FPAs to be combined on one or more parcels within the vicinity of a project site rather than requiring each project site to reserve an entire ground floor. To the extent FPAs are not feasible on a project site, allow for monetary or other contributions to promote such activities off-site within the area. Reduce the FPA requirement to no greater than 15% of ground floor area.
- If, after a reasonable amount of time (3-6 months), no facility of public accommodation is found, allow owner of such vacant space to substitute any use of the space allowed by local zoning on a temporary basis (i.e., no greater than 10 years).
Issue Four
- The current Chapter 91 appeal process is flawed. The current Chapter 91 regulations afford broader rights of appeal than contemplated by the Chapter 91 statute. The appeal process has been misused by small groups of individuals to leverage unrelated concessions from DEP and developers – a form of regulatory sanctioned blackmail – or simply to delay, which is often fatal to the feasibility of a development. The appeal process imposes extensive demands upon DEP and EOEA staff time and expense. This often results in the defeat of development which has otherwise received regulatory approval.
NAIOP Solution:
- Revisions to the appeal process are required. Specifically, NAIOP recommends amending the regulations by deleting the “right of appeal by ten residents of the Commonwealth” section. This will ensure a more effective and timely appeal process.
Issue Five
The DEP Waterways Program (which oversees Chapter 91) has been particularly hard hit with budgetary staff reductions, personnel departures, and retirements. The program cannot keep pace with the increasing number of pending projects, including major real estate developments. This program has significant implications for the Boston area economy, as there are so many major development projects located on the waterfront.
NAIOP Solution:
A full time ombudsperson position at the Department of Environmental Protection’s Waterways Program should be created for major Boston area projects through outside funding sources such as Massport and the Boston Redevelopment Authority. This recommendation is for a temporary “03” position, for a two-year period.
Conclusion
Responsible waterfront development is key to the future of Boston’s economy. The proposed revisions to Chapter 91 outlined above will ensure that Boston is equipped to move forward on the projects now in the pipeline while enforcing essential environmental regulations for all future waterfront development.
