February 2020
Climate Change Bill Mandates Zero Net Energy Code
The Massachusetts Senate approved legislation last month that would require the Board of Building Regulations and Standards (BBRS) in conjunction with the Division of Energy Resources (DOER) to promulgate a zero net energy building code for all new residential and commercial buildings. Cities and towns would then be able to adopt this “stretch code” on a local option basis. The bill, S. 2500, An Act Setting Next-Generation Climate Policy, was strongly opposed by the HBRAMA and other real estate development and business groups. HBRAMA was successful, however, in defeating an amendment that would have required all newly constructed single-family homes to include solar panels, as is now required in California. S. 2500 has been referred to the House Committee on Ways and Means. Action in the House of Representatives is expected later in the spring. See the proposed legislation here.

HBRAMA Joins Fight Against Municipal Bans on Future Natural Gas Connections
At its January Board of Directors Meeting, the HBRAMA voted to become a member of the Massachusetts Coalition for Sustainable Energy (MCSE). MCSE supports a responsible transition to a renewable energy future that ensures reliability and affordability, strengthens our economy, and enhances Massachusetts’ position as a leader on climate change. The coalition includes such business organizations as Associated Industries of Massachusetts, Massachusetts Business Roundtable, Massachusetts Competitive Partnership, Greater Boston Chamber of Commerce, National Federation of Independent Businesses, Mass High Tech Council, and the Retailers Association of Massachusetts. To address our energy deficit and continue progress in reducing emissions, the MCSE believes Massachusetts needs to expand its access to natural gas. That’s why it is opposing efforts to limit access to natural gas for consumers, homeowners and businesses.

The HBRAMA has also joined with NAIOP–the Commercial Real Estate Association, Associated General Contractors, AIM, Massachusetts Association of Realtors, API, and other groups in submitting a legal memorandum to Attorney General Maura Healey urging her to disapprove the Brookline bylaw that would ban future oil and gas installations in that town beginning in 2021. The outcome of this matter is of great consequence to homebuilders and developers, as at least 15 other communities, including Cambridge, Newton, Concord, and Lexington have expressed an interest in adopting similar bans. We HBRAMA will update the Membership as more information becomes available.

MassDEP Stormwater Advisory Committee; Increased Stormwater Design for Larger Precipitation Events Expected
On February 12, the MassDEP Stormwater Advisory Committee kicked off its first meeting among stakeholders. The MassDEP stated the purpose is not reconvening the Committee, it is to gather input on an update to the state Wetland Protection Act (WPA) Stormwater Management Standards regulations, the MA Stormwater Handbook, and guidance related to wetlands. The MA Stormwater Handbook was last updated in 2008 and the Hydrology Handbook in 2002. As reported by Jeff Brem, P.E., as well as Guy Web, both Participants on the Committee, the Advisory Committees will be focusing on the following:
  1. Updating precipitation projections as a result of precipitation intensity and frequency data, which may mean an increase in precipitation design by as much as 15-25%; meaning larger pipe sizes and more computed flooded areas;
  2. Aligning DEP Stormwater Handbook with EPA’s MS4 permit – this is a bigger issue. For example: EPA is mandating 90% TSS removal and 60% phosporous removal vs. MassDEP currently requires 80% and 0% respectively. While the MS4 standards are currently effective in most urbanized areas of Massachusetts, the Mass Stormwater Handbook, however, requires 80% for TSS only so we expect these standards to be the same under both MS4 and the MassDEP stormwater standards; and
  3. TS4 – Since the MassDOT is separated regulated for highways under its jurisdiction in Massachusetts, EPA is expected to issue a new TS4 Permit for the MassDOT in the Spring, 2020. As a result, the MassDEP Stormwater Handbook will include a new Chapter for MassDOT Highways.

The MassDEP has created a new website containing all materials involving the Stormwater Advisory Committee  here. A special thanks to Jeff Brem and Guy Webb for volunteering their efforts on this important matter for our Association.
Action on Housing Choices Bill Expected Early Spring, 2020
The House of Representatives is expected to take up Governor Baker’s Housing Choices Bill sometime in the early spring. The bill, H. 4236, would lower the threshold for the adoption of pro-housing zoning amendments (e.g., smart growth and starter home districts, reduced dimensional requirements for residential development, multi-family zoning) from the current requirement of a 2/3rds vote of town meeting or city council, to a mere majority vote. HBRAMA, together with representatives of the Massachusetts Municipal Association, Greater Boston Real Estate Board, Massachusetts Association of Realtors, Massachusetts Smart Growth Alliance, and the Massachusetts Association of Community Development Corporations, recently met with the House Committee on Ways and Means Chairman, Aaron Michlewitz (D-Boston), about the bill. Meanwhile, the Baker Administration continues its efforts to convince legislators to enact the bill. Governor Baker spoke forcefully about the need to address the Commonwealth’s housing shortage in his January State of the Commonwealth Address at the State House. And Housing and Economic Development Secretary Michael Kennealy continues to meet with both individual lawmakers and local officials to win support for H. 4236.

SJC Schedules Oral Argument in Case on Abutter Appeals
As reported in January’s On the Level, the Massachusetts Supreme Judicial Court will hear an oral argument in the case of Murchinson vs. Zoning Board of Appeals of Sherborn on March 5. This case was taken on a motion for Further Appellate Review from the Appeals Court, which was supported by an amicus brief submitted by the HBRAMA and written by Benjamin Fierro of Lynch & Fierro LLP. The Appeals Court in Murchison had issued a decision last September that would significantly erode the standing requirement in zoning appeals. That court held that the mere fact that an abutter’s home is directly across the street from an alleged zoning violation is a sufficient basis to confer standing without having to prove any particularized harm. Unless overturned by the SJC, the Appeals Court’s decision will arm the forces of NIMBYism with an effective weapon to thwart housing. Attorney Fierro also drafted and filed on behalf of HBRAMA, an amicus brief with the SJC on the merits of the case. A copy of the association’s brief can be found here.

Chan Resigns as Undersecretary of the Dept. of Housing & Community Development
Janelle Chan recently resigned as Undersecretary of the Department of Housing and Community Development to take a position as a senior policy fellow at the Massachusetts Housing Partnership. Chan had been picked by Governor Baker to succeed Chrystal Kornegay who was left the department to become executive director of MassHousing. DHCD Chief Financial Officer Jennifer Maddox has assumed the position as Acting Undersecretary.

Robert Brennan to serve as new Co-chair of Government Affairs Committee
Robert L. Brennan, Jr., President of CapeBuilt Development, LLC and the developer of Heritage Sands in Dennis Port, has been appointed the co-chair of the HBRAMA Government Affairs Committee. Rob will work with Attorney John Smolak to oversee the association’s legislative and regulatory agenda. Prior to founding CapeBuilt Development, Rob practiced as a land use attorney for almost 20 years and represented regional and national real estate developers on a variety of resort, residential, and commercial properties and a wide range of transactions, permitting, environmental compliance, and property operation matters. We welcome Rob to this position, and appreciate Rob’s agreement to serve in this position on behalf of our Association.
In Memory of Paul Moriarty
It is with great sadness that we report Paul Moriarty, a 2011 Legend of the Industry and long time BRAGB Member, has passed away on February 7, 2020 at the age of 90. Paul had a distinguished career as in-house counsel at the Boston Building Department and the Boston Redevelopment Authority. In the 1970s, he was recruited to create a State Building Code for Massachusetts, which became a model for subsequent national and international building regulations and standards. He later founded Paul J. Moriarty and Associates, a code consultancy group where he created a model for third party services assisting Building Departments in regulatory management of very large, complex real estate projects. The model is now standard practice throughout the country. Everyone who knew Paul knows that he thoroughly enjoyed his work, and continued to work every day running PJMA with enthusiasm until his recent illness. A job well done, Paul. Our thoughts and prayers go out to Paul’s family. His Obituary is available here.
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