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Letter to Belmont Selectmen
on the failure of Developer to file a "notice of Project Change"
which would be another step towards filing his commercial proposal. The Uplands forest is presently zoned for commercial property.
(from Frederick S. Paulsen; added to website June 17, 2004)
I respond to Tim Higgins' June 15th memorandum as follows:
FILING OF NOTICE OF PROJECT CHANGE ("NPC")
Tim Higgins has sought to answer your questions regarding the filing of a Notice of Project Change (NPC) and the triggering of the 12 month cooling off period. We are familiar with the regulations involved and disagree with Mr. Higgins' opinions on these two questions.
Massachusetts Environmental Protection Act (“MEPA”) regulations require that a Notice of Project Change (NPC) is to be filed by a developer with the Executive Office of Environmental Affairs (“EOEA”) "if there is any material change in a Project prior to the taking of all Agency Actions for the Project".
O'Neill has changed his project from an Office/R&D facility to a housing project, causing material change in the project's impacts, and has brought the housing project before Town and state agencies for review and action. But he has failed to file the NPC even though Agency actions are pending on his changed project and he was previously warned by EOEA of the need to file timely the NPC if he changed his Office/R&D project to a housing project.
Thus, the Town should heed the regulations which provide that "any other Agency or Person" may file the NPC on his project, and send the NPC to EOEA immediately. This will enable EOEA to determine what new environmental issues are presented by the changed project and order an evaluation of these issues by the developer either in a Supplemental EIR or a new EIR.
Unless the NPC is filed and the new issues evaluated, EOEA is unable to perform its statutory mandate and the Town and its citizens are deprived of the opportunity to review the changed project. So the NPC is not a technicality left to the developer's discretion, it is a key feature of Massachusetts law on project review and public involvement pursuant to MEPA.
It is clearly in the Town's best interest for the Selectmen to act now by sending the NPC to EOEA because the Board of Selectmen desires to reduce the size of the 40B proposal and to examine the feasibility of the Uplands Advisory Committee's alternative Rink Site.
This, we anticipate, will result in having EOEA require O’Neill to prepare new traffic, sanitary waste discharge, impacts to wetlands, and other environmental information, and perform a study of alternative locations to avoid destruction of the Silver Maple forest. This could bring to light some of the advantages of a smaller project and development on the Alternative Rink Site.
In support of the above, I provide the following background and references to the MEPA regulations and MassDevelopment’s requirements.
301 CMR 11.10(1) states: "Unless the Secretary has indicated otherwise in the certificate on a review document or as part of a Special Review Procedure, the Proponent shall, and any other Agency or Person may, file a Notice of Project Change with the Secretary if there is any material change in a Project prior to the taking of all Agency Actions for the Project."
The Secretary issued a Certificate pertaining to the Belmont Office/R&D Building, dated October 2, 2003. In this certificate, James W. Hunt acting for Ellen Roy Herzfelder, states in footnote 1, "The findings in this Certificate are based on the alternatives analysis conducted for a commercial development on the subject property. I understand that the proponent may consider an alternative development consisting of a housing subdivision. If the project should change, I remind the proponent of the need to file a timely Notice of Project Change in accordance with Section 11.10 of the MEPA regulations." I believe that O'Neill is considerably beyond the "timely" filing date. O'Neill notified the Town of his first residential project over a year ago, the Secretary published her footnote 1 in October, 2003, and O'Neill filed his 40B Project Eligibility Application with MassDevelopment and the Town in April 2004.
On account of the requirement in 301 CMR 11.10(1) that O'Neill (the Proponent) “shall file” and the admonition in the footnote in the Environmental Certificate on the R&D Project that the NPC be "timely" filed, it is reasonable to conclude that O'Neill is past due on having to file the NPC.
For MassDevelopment to decide on Project Eligibility, pursuant to the relevant guidelines cited in our submission to the Board of Selectmen dated June 10, 2004, environmental considerations are relevant. This is specifically acknowledged by MassDevelopment in MassDevelopment’s List of Required Attachments for a complete Chapter 40B application. One such required attachment includes “State approvals or determinations applicable to the site/proposed project, if any, such as Conservation Commission Order of Conditions, MEPA Determination.”
No certification from MassDevelopment or the Department of Housing and Community Development has been provided stating that no Environmental Notification Form must be filed. No certification from the Secretary of Environmental Affairs has been provided stating that no Environmental Impact Report is required.
The Applicant has submitted a single document in response to the requirement in the Application for MEPA related material. The single document submitted with the Application is a Certificate of the Secretary of Environmental Affairs on the Final Environmental Impact Report pertaining to the Belmont Office/R&D Building, dated October 2, 2003.
As I recommended last Monday evening, the Board of Selectmen, pursuant to 301 CMR 11.10(1), may file the NPC. In light of the delay by O'Neill and the importance of the new environmental information, this is the appropriate step to take and is recommended by the Uplands Advisory Committee.
RELATED APPLICATION WARRANTS DEFERRAL OF THE 40B APPLICATION
In the following, I repeat, and amplify the information I provided in Report III attached to the Uplands Advisory Committee's June 10th letter.
O’Neill filed a Notice of Intent with the Belmont Conservation Commission pertaining to the 245,000 sq. ft. office/R&D building at the Uplands site. The Notice of Intent, consisting of three volumes, prepared by O’Neill’s consultants, requested that the Commission (1) issue an order of conditions authorizing the construction of the 40B Project, and (2) review 1,017 feet of wetland delineation on the eastern side of Acorn Park Drive. The Conservation Commission issued a negative Order of Conditions on June 23, 2003. On July 8, 2003, O’Neill requested a Superseding Order of Conditions from the Massachusetts Department of Environmental Protection. This constitutes an appeal from the Conservation Commission's decision.
The Notice of Intent was a key element in the process of obtaining approval of the Town for the construction of the R&D Project. As stated by O'Neill's attorneys, the process involved the negotiation of the Memorandum of Agreement ("MOA") and the adoption of the Zoning By-Law Amendment in May 2002 (the “Amendment”). The Amendment addressed wetlands and floodplains impacts. As further stated by O’Neill’s attorneys in O'Neill's request for the Superseding Order of Conditions, the Conservation Commission’s approval was “a prerequisite to achieving site plan approval on the same topics” as provided for in the Amendment (Page 9 of Nutter McClellen & Fish's letter, dated July 8, 2003).
The R&D Project remains ongoing. The MOA between the Town and O’Neill remains in effect, and the Legislation implementing the terms of the MOA was signed within the last three weeks by Governor Romney.
The Zoning Board of Appeals may dismiss an Application for a Comprehensive Permit if a prior application for an approval related to the construction on the same land (as the site of the proposed 40B Project) has been pending before a local permit granting authority within 12 months of the 40B application. 760 CMR 31.07(1)(h)2. The Conservation Commission is such a local permit granting authority. It is reasonable to assume that if the "related application" before the Conservation Commission is brought to the attention of MassDevelopment, MassDevelopment will not grant Project Eligibility for the Uplands site. The issuance of the negative Order of Conditions by the Conservation Commission (referred to by Mr. Higgins as the "denial") is not final because of O'Neill's appeal. Because of O’Neill’s appeal to DEP, the application remains pending before the Conservation Commission. MassDevelopment must defer its Site Eligibility determination until 12 months after O’Neill withdraws its appeal and its application before the Conservation Commission.
Frederick S. Paulsen
Burns & Levinson LLP
125 Summer Street
Boston, MA 02110-1624