Unified Permitting System for the Redevelopment of Fort Devens

Devens Enterprise Commission

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Introduction

The Devens Enterprise Commission Unified Development Permit System is an example of how a streamlined comprehensive development permitting process can bring an area back to life by attracting new businesses. By combining planning, conservation, health, historic, and variance issues under the authority of one entity, the Devens Enterprise Commission has been able to expedite the review and permitting of development projects to under 75 days, in a state where the norm is many more months, and sometimes even years.

A consolidated, expedited review process not only improves the quality and efficiency of government, it also provides applicants with more certainty and less risk in project planning, saving them money and encouraging them to bring their jobs and profits to the state. The recent decision of Bristol-Myers Squibb to locate its newest facility at Devens, after a global search, is evidence of the appeal of the Unified Development Permit System to major job and wealth creators.

While the Commonwealth has recently passed legislation that takes some steps towards consolidating and shortening permit review times, there is still much in the Devens experience from which to learn.

The Problem

Local development permitting in Massachusetts, like many other states, is often a slow and complicated process that frustrates developers and can delay projects for lengthy periods. This can be costly for both developers and communities, since businesses factor these costs, uncertainties, and delays into their decisions about where to locate, turning to areas where the process is more transparent and predictable, and taking their jobs with them.

The American Planning Association ranks Massachusetts among the worst states in the nation with regard to its planning and zoning statutes. The Commonwealth’s municipal development regulations typically feature a variety of statutory time limits, and splinter authority among multiple boards with variable jurisdictions. This often leads to disjointed inter-board communications, along with lengthy and complicated review and hearing processes. Harvard economist Edward Glaeser concludes, in his recent paper “Regulation and the Rise of Housing Prices in Greater Boston,”¹ that excessive zoning regulation has added greatly to the cost of housing in eastern Massachusetts.

When a particular locality or area has other advantages, for example, a fully developed infrastructure and proximity to markets, institutions of higher education, and trained employees, developers and businesses may be willing to suffer the obstacles erected by the local permitting process. However, in places that have few of those advantages, development often depends on government innovation to ease the way.

Such was the case at Fort Devens. In 1991, the U.S. Department of Defense (DOD) decided to close the Fort Devens Military Reservation in north-central Massachusetts. Faced with the loss of more than 7,000 jobs, the Commonwealth of Massachusetts worked together with the DOD, surrounding towns, and regional stakeholders to establish a redevelopment plan featuring a streamlined comprehensive development permitting process. The former military base consists of 4,400 acres, most of which required extensive facility demolition, environmental cleanup, and infrastructure upgrades and maintenance. With these kinds of internal hurdles, it was crucial that the state eliminate regulatory obstacles to redevelopment.

The Solution

The Massachusetts state legislature established Chapter 498 of the Acts of 1993 to create a legal framework for the governance and development of a Devens Regional Enterprise Zone to promote the expeditious and orderly clean-up, conversion, and redevelopment of Fort Devens for nonmilitary uses, including residential, industrial, institutional, educational, governmental, recreational, conservational, commercial, and manufacturing uses. The legislation evolved out of an extensive citizen participation process involving the four communities underlying the former Fort Devens (Ayer, Harvard, Lancaster, and Shirley) and representatives from surrounding communities, employing a steering committee format created by then-Governor Weld.

The culmination of this citizen participation process was the Devens Charette, a meeting held in conjunction with the Boston Society of Architects and with the participation of architects, planners, and development professionals from throughout New England. The Charette established the organizing principle of redevelopment as sustainable development: development that balances economic development, environmental protection, and social equity issues. The Massachusetts Land Bank, in collaboration with the communities, worked with a team of consultants headed by VHB to draft the framework for Devens redevelopment. This included the Devens Reuse Plan, the Devens By- Laws, and the draft legislation that became Chapter 498. Chapter 498 also established the Devens Enterprise Commission (DEC)—the regulatory and permit granting authority for the redevelopment of Devens. The DEC is empowered to act as a local planning board, conservation commission, board of health, zoning board of appeals, historic district commission and, in certain instances, as a board of selectmen.

The DEC is comprised of 15 members, two from each of the three surrounding communities of Ayer, Harvard, and Shirley (plus one alternate from each of them) and six regional representatives. It is fortunate to have a highly competent and talented chairman, William P. Marshall, and a membership that understands the importance of its role in the development process. The composition reflects a balance of regional and local interests and has resulted in a consistent application of its regulatory powers over time.

Essentially, the DEC acts as a small regional planning agency, but with all the powers and authority of an individual town. This regional governance provides for a more comprehensive approach to planning and development, and reduces the competing interests of individual towns that adversely affect many of today’s development patterns. Instead, growth is directed to areas where existing infrastructure can support it. Those areas that cannot or should not support growth are identified and classified as part of the green infrastructure of the community and region rather than as “no-build zones.”

The DEC carries out these duties in the context of an innovative one-stop Unified Development Permitting system that greatly streamlines the local regulatory process. Under this system, all development is permitted as-of-right and complete permit reviews for projects are undertaken within 75 days. It is this unified develop permitting system, combined with a comprehensive plan (the Devens Reuse Plan), and the consolidation of local permitting boards that has made the permitting system shorter, less complicated, and more transparent.

The Devens by-laws also provide opportunities for streamlining the permit review process by facilitating certain approvals administratively, without public hearing or formal commission meetings. These types of projects (referred to as “Level One Permits”) typically involve relatively minor modifications to site plans, lot lines, and architectural modifications in historic areas, as well as wetland certificates of compliance.

The Unified Permit Review process is guided by the redevelopment plan and its principles of sustainable development, which include economic, ecological, and social considerations. Applications that are consistent with the redevelopment plan and these principles move through the entire process in less than 75 days. Pre-application meetings with potential applicants filter out those projects that are not consistent with the Reuse Plan. Where feasible, the staff provides guidance on how to tailor the project to conform more fully to the Reuse Plan.

None of this was imposed from above by the Commonwealth or the Department of Defense. The towns within the boundary of the former military base—Ayer, Harvard, and Shirley—participated fully in the process. Moreover, the process was and is open-ended: these regulations have been amended numerous times since 1994 to incorporate innovations in land-use planning, ecologically sound industrial development, and smart growth practices.

The Cost of the Program

Funding for the implementation of Chapter 498 came from many sources. The DOD provided funding, through its Base Realignment and Closure Act, for start-up costs associated with planning, forums for public participation, and consulting services. These programs were delineated by the 1994 Bylaws, the 1994 Reuse Plan, and the Devens Enterprise Commissions’ Development Rules and Regulations (the documents that detail the Unified Permit regulatory process).

The Devens Enterprise Commission and other programs provided for in the Development Rules and Regulations since 1996 were funded from two sources. The first was the Massachusetts state legislature, which provided $250,000 in FY 1997, $275,540 in FY 1998, $230,000 in FY 1999, $175,000 in FY 2000, and $100,000 in FY 2001. The second source of funding was permit fees, which like the real estate development cycle, vary from year to year. Annual permitting fees generated income ranging from $73,000 in FY 1998 to $260,000 in FY 2000, $640,000 FY 2001, and about $300,000 in FY 2005.

While the DOD and the Commonwealth funded the development costs for creating the Unified Permitting System (about $250,000), since then it has been largely self-sustaining, with permitting fees funding most of the costs associated with DEC operations. Permitting fees are set as a percentage of the total cost of the project, including land and all existing and proposed improvements. Since the DEC does not have licensed professional engineers on staff, the applicant pays the fee for independent engineering service review. In addition, the landowner, MassDevelopment, dedicates two percent of the property taxes it collects to subsidize the operations of the DEC.

The Benefits of the Program

While developing, implementing, and supporting the Unified Permitting process has not been free, it has greatly increased the efficiency of the permitting process by consolidating boards and commissions. For example, rather than having separate applications, filings, notifications, paperwork, and hearings for wetlands, planning, zoning, and the various boards of appeals, the Unified Permitting process only has only one round of advertisements and public hearings. Although the DEC has by statute up to 75 days to accept an application, hold a public hearing, and render a decision, it has rarely needed more than 60 days. Table 1 illustrates some of the larger development projects and their review times.

Obviously, shortening and simplifying the permitting process also saves developers money. Even more importantly for developers, streamlined permitting makes the process more transparent and predictable, diminishing risk and uncertainty, which also cost money. Thanks to these advantages, and MassDevelopment’s marketing and promotion of them, Devens has attracted and retained more than 90 businesses and organizations.

The DEC is committed to the regular reevaluation of its processes, procedures, and regulations in order to accommodate changes in the market consistent with its sustainable development goals. This builtin flexibility has allowed it to study and adopt innovative approaches to development such as low-impact techniques, eco-industrial theory, and smart growth and New Urbanist concepts for compact, affordable mixed-use neighborhoods to meet resident, community, and business needs. The entire Devens regulatory environment is available on line at www.devensec.com, much of it in a searchable format, along with sample staff reports, records of decision, annual financial audits, annual reports, application forms, and FAQs.

Application to Massachusetts

Long and complicated permitting processes are common in Massachusetts. As many studies have suggested, they are a principal reason for the high cost of residential housing and the flight of businesses and residents from the Commonwealth.² The state has recently passed new legislation (Chapter 43 D) that allows local towns and cities to adopt a streamlined permitting process for comprehensively planned areas, establishing development as-of-right, or without discretionary permit approvals. While this is a good first step, it still allows for a 180-day review period. The Devens experience has shown that a much shorter review period, 75 days, is compatible with thorough, high-quality review.

Devens operates in a statutory environment that more similar to that of New Hampshire than the rest of the Commonwealth. Zoning and regulations must be consistent with the local comprehensive plan (in this case the Devens Reuse Plan). There are no “Subdivision Approval Not Required” lots (ANRs), nor can you vest your plans for seven years by filing a preliminary plan, as one might do elsewhere in the Commonwealth. As the result of an extensive citizen participation process, all development within Devens is as-of-right: use variances are not allowed. Clearly written regulations describe how to site, design, and landscape facilities which wish to locate at Devens. Qualified and knowledgeable staff are available to answer questions from the development community and to clarify questions about the process and the regulations. An expert development review team is employed in analyzing the development application and the reviews and rigorous expectations produce high quality, aesthetically pleasing results. Devens’ industrial parks are well landscaped and exhibit excellent curb appeal.

Deploying similar resources to assist communities in developing and adopting such regulations will require reforms to the current statutory environment such as those proposed in the Community Planning Act (H. 175 and S. 1193). There are also other local option initiatives, such as 40R, 40S, and 43D, that allow higher densities as-of-right in return for financial and other incentives from the state; however, the stronger these statutes have been, the more likely they have been to provoke resistance from communities and politicians who fear the loss of control.

Two special conditions are the foundation of the Devens experiment’s success:

• Openness to engaging in new and challenging approaches to community-building. The Nashoba Valley region has a history of hosting experimental communities, ranging from Bronson Alcott’s Fruitlands in Harvard to Shaker communities in Shirley and Harvard.
• The threat of a military base closure created a unity of vision and purpose that differentiated the region from the rest of the Commonwealth. Also, the state was more closely involved with Devens redevelopment than that of the South Weymouth Naval Air Station.

However, while these circumstances may be peculiar to Devens, many lessons from the Devens experience could make the regulatory process easier for other towns and cities:

• There is a role for regionalism in the Commonwealth. Organizations like DEC and MassDevelopment can function as a productive middle tier of government between the state and municipalities.
• Requiring consistency between the Reuse Plan (master plan), zoning, and regulations has worked throughout the nation and, as we have shown, it can work in Massachusetts.
• Streamlined permitting is great bait for business and development, especially when it cuts out the ANRs, special permits, and extensive vesting provisions that characterize so many communities’ regulatory norms.
• Quality plans and a quality regulatory environment produce quality results.

There is still have plenty of work to do, with another 2,500,000 square feet in Devens to sell or lease. There is little potential for further streamlining of permitting, without impinging on necessary legal notice requirements and perhaps impeding the public’s ability to participate fully in the process. Devens is still constrained, however, by zoning which artificially limits the amount of housing at Devens to 282 dwelling units. The recent failed efforts to create a new town at Devens attempted to remove that cap, and allow up to 1800 units of housing. Hopefully, the governor and the legislature will address this issue in the near future, allowing Devens to fulfill the promise of its innovative approach to local governance.

Contact the Authors:

Resource List:

• Devens Enterprise Commission official website: http://www.devensec.com/
• The complete DEC regulations and bylaws, including a searchable database: http://www.devensec.com/devserv.html
• Chapter 498 THE COMMONWEALTH OF MASSACHUSETTS 1993—AN ACT CREATING THE DEVENS ENTERPRISE COMMISSION: http://www.devensec.com/ch498/dec498toc.html
• Current listing of businesses located at Devens: http://www. devenscommunity.com/business_and_industry/directory.html
• Real estate information is available at http://www.massdevelopment. com/re/devens.aspx
• Information about the Devens community, news, and events: http://www.devenscommunity.com/

Endnotes:

1. Edward L. Glaeser, Jenny Schuetz, and Bryce Ward, “Regulation and the Rise of Housing Prices: A Study Based on New Data from 187 Communities in Eastern Massachusetts,” Pioneer Institute and Rappaport Institute, January 5, 2006, http:// www.ksg.harvard.edu/rappaport/ downloads/housing_regulations/ regulation_housingprices.pdf.
2. See, for example, Barry Bluestone, “Sustaining the Mass Economy: Housing Costs, Population Dynamics, and Employment,” a draft report prepared for The Federal Reserve Bank of Boston’s New England Public Policy Center and The Rappaport Institute for Greater Boston, May 22, 2006, http://www.curp.neu.edu/pdfs/ Rev1.Draft%20Report1.052006. pdf;, Bonnie Heudorfer and Barry Bluestone, “The Greater Boston Housing Report Card 2005–2006: An Assessment of Progress on Housing in the Greater Boston Area,” The Center for Urban and Regional Policy (CURP), September 2006, http://www.curp.neu.edu/pdfs/ HRC%202005-2006.pdf; and David Soule, Joan Fitzgerald, and Barry Bluestone, “The Rebirth of Older Industrial Cities: Exciting Opportunities for Private Sector Investment,” Center for Urban and Regional Policy (CURP), April 2004, http://www.curp. neu/pdfs/Final%20Report%PDF. pdf. The latter, for example, states that “the development process in Massachusetts is broken. That construction starts are so slow to respond to increasing demand—and that they continue to increase even as demand ebbs—is symptomatic of the Commonwealth’s flawed development permitting process. A four-to-seven year lead time to get a project into the ground is typical for projects regardless of location, type, and price. The nonprofit developer piecing together six or seven funding commitments to make a small project feasible, the large-scale developer assembling a site and securing approvals in a major city, and the developer using the ‘expedited’ permitting process offered by the state’s affordable housing statute (Chapter 40B) in a suburban town all face a similarly protracted process.” Unified Permitting System for the Redevelopment of Fort Devens