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Showing 36 posts in Land Use. View our practice description for Land Use.

Court Mandates Full Payment of 40B Application Fee for Complete Application

Municipality Successfully Invokes Safe Harbor Due to Late Payment

Ruling that a developer who files a comprehensive permit application without paying the full filing fee “does so at its peril,” the Court in Zoning Board of Appeals of Hanover v. Housing Appeals Committee, 90 Mass. App. Ct. 111 (2016), found that the local board of appeals properly considered the developer's application with the benefit of the “safe harbor” which the town had achieved in the interim period between the partial and full payment of the fee. As a result, the Court reversed the Housing Appeals Committee’s (HAC) order that the local board issue a comprehensive permit for a 200-unit rental project. In sum, the “safest procedure” for a developer is to concurrently pay the full fee and file a motion to reduce it. Read More ›

Impacts of the 2016 U.S. Election on Environmental Law, Policy, and Enforcement

The 2016 election results will have wide-ranging impacts on the future direction of environmental law, policy, and enforcement in the U.S.  With 100 lawyers in offices around the U.S. focused on environmental and natural resource law and litigation, Beveridge & Diamond helps clients navigate legal and business risks arising from this evolving legal landscape. Read More ›

Off to Court We Go: Petitioners Challenge EPA’s Small MS4 General Permit for Massachusetts

The storm of debate and criticism over the terms and conditions of the U.S. Environmental Protection Agency’s (EPA) General Permit for Stormwater Discharges from Small Municipal Separate Storm Sewer Systems in Massachusetts (the Small MS4 General Permit or Permit) has shifted to the judicial arena.  In July, the first of several petitions for review of the final Small MS4 General Permit was filed in the D.C. Circuit Federal Court of Appeals, followed by four more challenges filed in the First Circuit Federal Court of Appeals.  Notwithstanding the initiation of litigation, Massachusetts municipalities should be continuing to develop their plans and organizing their resources to effectively implement the Small MS4 General Permit, which becomes effective in July 2017.  Read More ›

EPA Issues Update to Settlement Penalty Policy for Industrial Stormwater Violations

Some violators of federal industrial stormwater requirements will likely pay significantly higher penalties under new guidance issued by U.S. EPA.  The new guidance, “Supplemental Guidance to the 1995 Interim Clean Water Act Settlement Penalty Policy for Violations of the Industrial Stormwater Requirements” (the 2016 Supplemental Guidance), provides agency staff with guidance on how to calculate a minimum settlement penalty for unauthorized discharges of industrial stormwater, violations of EPA or state-issued NPDES industrial stormwater permits, and other violations of Clean Water Act stormwater requirements applicable to industrial activity.  The 2016 Supplemental Guidance sets forth a more sophisticated and detailed approach to calculating settlement penalties as compared to the 1995 Interim Policy.  While the effects of the new guidance are not entirely clear, it is likely that it will result in higher penalties for larger and more sophisticated companies compared to smaller companies for the same violations.  Read More ›

Mass DEP Proposes Changes to Air Program

In August 2016, the Massachusetts Department of Environmental Protection (MassDEP) proposed several changes to its air regulations as part of its efforts to streamline regulations and reduce unnecessary regulatory burdens under Executive Order 562.  These changes will affect a wide range of industrial and commercial facilities.  Read More ›

Breaking News: MassDEP Issues Vapor Intrusion Guidance

This week, MassDEP issued its long-awaited final “Vapor Intrusion Guidance:  Site Assessment, Mitigation and Closure,” which is available here.  This 126-page document, which is based on the October 2014 draft that received substantial public comment, provides guidance on how to assess, remediate, and close vapor intrusion sites under state cleanup regulations that were substantially revised in June 2014, as we described in a previous alert.  Stay tuned:  we will provide a full analysis in a future alert.   

Massachusetts Appeals Court Imposes Higher Hurdle For Master Plan to Defeat 40B Project

In another setback to opponents of Chapter 40B affordable housing projects, the Massachusetts Appeals Court upheld the Housing Appeals Committee’s (HAC) creation of a seemingly more rigorous four-part test that appears to place a tougher burden on municipalities seeking to deny 40B projects on the ground that their master plan is a local concern that trumps the need for affordable housing. Read More ›

Massachusetts Appeals Court Imposes Higher Hurdle For Master Plan to Defeat 40B Project

In another setback to opponents of Chapter 40B affordable housing projects, the Massachusetts Appeals Court upheld the Housing Appeals Committee’s (HAC) creation of a seemingly more rigorous four-part test that appears to place a tougher burden on municipalities seeking to deny 40B projects on the ground that their master plan is a local concern that trumps the need for affordable housing. Read More ›

New Conservation Restrictions for the Northern Long-Eared Bat Will Have Limited Impact on Development in Massachusetts

A new Endangered Species Act rule protecting the northern long-eared bat will likely have only limited impact on development and land use activities in Massachusetts due to fairly specific restrictions imposed by the final rule published in January by the U.S. Fish and Wildlife Service (FWS).  See 81 Fed. Reg. 1900 (Jan. 14, 2016).  The northern long-eared bat was listed as a threatened species in April 2015 and its protection was governed by an interim rule until the final rule was published.  Because the range of the northern long-eared bat’s range covers 37 states including Massachusetts and much of New England, land owners, developers, and other stakeholders have been awaiting finalization of the rule. Read More ›

No Appeal to Housing Court for Major Development Projects Says Top Mass. Court

Appeals of major development projects of 25 or more dwelling units or 25,000 square feet or more of gross floor area cannot go to the Massachusetts Housing Court, as jurisdiction for these projects is exclusively with the Superior Court and Permit Session of the Land Court, according to a recent decision by the highest Massachusetts court.  Read More ›