[MassHistPres] GOV #119 v S.2053 -- it's even worse!

[Dennis De Witt]

It is important to note the most important difference between this new attack on Massachusetts' Historic Preservation protections through the MHC and its recent predecessor s.2053.  

Under s.2053 the larger MHC "inventory" of historic properties would have been stripped of protection but the smaller and arguably more important State Register (including N.R and LHD properties) would still have been protected.  

Under this new proposal it appears that ALL protection is likely to be lost in virtually ALL cases.  MHC's consultative mitigation process would no longer be initiated immediately and automatically.  Instead, perversely, it could only be initiated by some other state agency, if one was involved and chose to do so (it is unclear why it would) or by the proponent (which, by definition, is so unlikely as to seem absurd).

This proposal has been quietly inserted without debate or meaningful notice into the Senate budget as an "outside section" by Sen. Rodrigues of New Bedford who also initiated s.2053, together with Sen. Kenneth Donnelly of Arlington, co-chair of the joint Committee that held the public hearing on S.2053.  This proposal is in the form of an "outside section" -- a sneaky invention of the 1970s (which was supposed to have been eliminated by recent reforms) that allows unrelated legislation to be buried in the budget at the last minute and without notice.

It is very important to contact legislators and local government bodies about this.  As just one example of the harm it could do, presently a 40B project proposal can ride roughshod over just about every local legislation -- except MHC's ability to comment to the state board that oversees the 40B process and seek mitigation.  

This legislation would effectively silence MHC.

Dennis De Witt
Brookline



On May 18, 2012, at 6:56 PM, Steinitz, Michael (SEC) wrote:

> The message is to alert you that Senator Kenneth Donnelly (Lincoln) and Sen. Rodrigues (New Bedford) have filed a bill that is now attached to the Senate version of the State FY13 Budget as GOV #119.  The Senate Budget bill is moving quickly through the Senate.  It is important to contact your Senators as soon as possible to voice your opposition to this bill.
>  
> This bill would have serious negative impacts on the Massachusetts Historical Commission’s ability to preserve historic properties, archaeological sites and Native American burial sites by amending MHC’s State Register review statute in such a manner to make the MHC’s consultation process for adverse effect findings effectively meaningless. 
>  
> The proposed new changes in GOV #119 to MHC’s Section 27C are highlighted in the attachment.
>  
> Section 17A of the bill will put control of the MHC’s consultation process in the hands of project proponents.  Currently, the existing statute requires that all parties immediately consult after the MHC makes an “adverse effect” finding, in order to explore prudent and feasible alternatives that would eliminate, minimize or mitigate the adverse effects.  Instead, the bill proposes give the proponent the opportunity to request consultation with MHC.  The MHC would not be allowed to start the consultation process unless the proponent requests it.
>  
> In addition, the proposed language would impose a 90-day limit on consultation (but only if the proponent requests consultation).  The 90-day limit would have negative impacts on the ability to explore feasible alternatives, conduct feasibility studies, structural analysis and conduct archaeological investigations, as well as curtail the ability to seek comments from consulting and interested parties. 
>  
> The bill proposes that the MHC would only be able to make recommendations as a result of the consultation.  The proposed language does not require that a Memorandum of Agreement (MOA) be developed, just that the MHC issue recommendations.  The proponent would be allowed to ignore MHC’s recommendations and not enter into a signed MOA to make a commitment to stipulations that would eliminate, minimize of mitigate the adverse effects.
>  
> A new section (Section 17B) is also proposed which would put sensitive records that are already exempt under the Public Records subject to disclosure to any persons requesting the records, such as records pertaining to Native American burial sites, personal information, etc.  Section 17B ought not to pass.
>  
> Here is the full language of GOV 119. New language is in bold, underlined. Deleted language is in italics, brackets.
> GOV 119
> Massachusetts Historical Commission
> Messrs. Donnelly and Rodrigues moved that the bill be amended by inserting, after section 17, the following sections: - 
> 
> “SECTION 17A. Section 27C of chapter 9 of the General Laws, as appearing in the 2010 Official Edition, is hereby amended by striking out the first paragraph and inserting in place thereof the following paragraph:-
> 
> 
> As early as possible in the planning process of a project undertaken by a state body, or prior to a state body’s funding or licensing, in whole or in part, a private project, the state body undertaking, funding or licensing such project shall notify the commission of such project and the commission shall, within 30 days of receipt of such notice, determine whether such project will have any adverse effect, direct or indirect, on any property listed in the state register of historic places. If the commission does not make a determination within 30 days, the state body or the proponent may proceed with the project. Upon a determination of adverse effect, the [commission, the] state agency and, in the case of a private project, the project proponent shall [immediately consult] have 15 days to request the commission’s consultation to discuss ways to eliminate, minimize or mitigate the adverse effects; provided, however, that such property was included in the inventory of the historic assets of the commonwealth prior to the thirtieth day following the submission of an application for building, demolition, special permit or the submission of a plan under section 81O, 81P or 81S of chapter 41, or the application for the required state permits for the project. Upon receiving a request for consultation, the commission shall have 90 days to consult with the state agency, project proponent and interested parties to develop recommendations to eliminate, minimize or mitigate adverse effects of the project. At the end of this 90 day period, consultation shall be deemed to be concluded. The state body undertaking the project or the private entity proposing the project shall adopt all prudent and feasible means to eliminate, minimize or mitigate the adverse effects, provided that the commission has issued written recommendations for elimination, minimization or mitigation of the adverse effects. If the commission does not issue such recommendations in writing within 30 days from the date consultation has concluded, the state agency or project proponent may proceed with the project. The commission’s review shall not be limited to the subject matter of the license, but shall extend to the entire project whether licensed or funded in whole or in part. The commission shall have the authority to promulgate rules and regulations necessary to implement this section. This section shall be interpreted and administered so as to eliminate, minimize or mitigate adverse effects to properties listed in the state register of historic places.
> SECTION 17B. Said section 27C of said chapter 9, as so appearing, is hereby further amended by adding the following paragraph:- 
> 
> A record related to any project that is subject to this section, except the inventory of archeological sites and specimens maintained under clause (1) of section 26A, including correspondence between the commission and any state agency or project proponent, shall be a public record as defined by section 7 of chapter 4.”.
>  
>  
>  
> Michael Steinitz
> Deputy State Historic Preservation Officer
> Director, Preservation Planning Division
> Massachusetts Historical Commission
> 220 Morrissey Boulevard
> Boston, Massachusetts 02125
> 617-727-8470
> 617-727-5128 (fax)
> michael.steinitz at state.ma.us
>  
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