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Bay view tower, hull, Massachusetts
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ENVIRON IMPACT ASSES REV 1986:6:173-182
BAY VIEW TOWER, HULL, MASSACHUSETTS
PHYLLIS L. ROBINSON
Hull, Massachusetts is a working-class community situated on a narrow, sevenand-one-half mile long peninsula jutting out from the southern shoreline of Massachusetts Bay. Although Hull is endowed with 24 miles of beaches and shoreline, years of poor economic conditions have made development a much higher priority among the town's residents than environmental protection. However, in recent years, the town has learned that its coastal environment influences the shape of its development and cannot be ignored. For over 20 years, Hull has been trying to attract development to revitalize its depressed economy. As part of this goal, the Hull Redevelopment Authority (HRA) acquired an 18-acre tract of land on Nantasket Beach in the mid-1960's which it hoped to redevelop into homes and businesses (Figure 1). In 1979, after years of unsuccessful development attempts, a contract to build on this site was finally negotiated with Consultants Inc., a private firm from Providence, Rhode Island. The first phase of the redevelopment package included an 1 l-story, 150-unit apartment building, called Bay View Tower, for elderly and handicapped people. Initially, the developers had the full support of the HRA and most of Hulrs residents (Alabrandy 1985). However, a difficult and complex implementation process resulting from the design and siting of Bay View Tower would later diminish the project's popularity. The high-rise building was sited on a barrier beach and required filling coastal wetlands, fragile resources protected under state and federal laws. In addition, barrier beaches are considered unsafe for development because they are subject to severe storm damage and flooding. For these reasons, the site was criticized as a poor location to house elderly and handicapped people. Consultants Inc. needed a variety of local, state and federal permits before
© 1986 Elsevier Science Publishing Co., Inc. 52 Vanderbilt Avenue, New York, NY 10017
0195-9255/86/$3.5(
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Figure 1. Nantasket Beach at Hull, the area of proposed Bay View Tower project. Source: Department of Public Works, Massachusetts. they could begin construction of Bay View Tower. In order to determine if they would be allowed to fillin the wetlands, permits were needed from the Hull Conservation Commission, the Massachusetts Department of Environmental Quality Engineering (DEQE) and the US Army Corps of Engineers (Corps). In addition, the project was subject to federal consistency review by the Massachusetts Office of Coastal Zone Management (CZM), a management and planning agency mandated to promote economically and ¢nviromnentally sound development in coastal areas. Finally, because the developers were seeking financing from the US Department of Housing and Urban Development (HUD), federal regulations required that the design features and evacuation plans ensuring the occupants' safety meet the Federal Emergency Management Agency's (FEMA) guidelines.
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The combination of a poorly designed project, multiple government actors with different mandates and an environmentally sensitive site led to the total collapse of the Bay View Tower Project. In the absence of a centralized environmental decision-making process which could pull together these diffuse elements and incorporate public review, a series of individual, often contradicto/y decisions were made at different governmental levels. Ultimately, local and state approval was obtained to fill in the wetlands. However, controversy over the occupants' safety and evacuation plans led HUD to retract its pledge for financial assistance (Shelley 1985). The town, angered by the developer's insolvency, eventually voted to rezone the area. The developers, in turn, sued the town for breach of contract (Ovans 1985). Bay View Tower was never built; but this was due more to an evolving awareness of the project's defects than to a single decision based on its merits.
The Proposal In 1979, Consultants Inc. signed a contract with the Hull Redevelopment Agency (HRA) to build homes and businesses on its 18-acre parcel of land.,The HRA and most of Hull's residents hoped that this development would boost the town's depressed economy (McCabe 1985). As a special enticement to Consultants Inc., the I-IRA allowed the developers to build an apartment building for elderly and handicapped people as the first phase of the redevelopment package (Russell 1985). The project, Bay View Tower, was to be financed by HUD's Section 8 program which guarantees financing for twenty years. Over the course of the next year, Consultants Inc. ran into many problems trying to secure financing for both the private and the Section 8 housing projects. Many town officials grew impatient with the delays and thought that the developers were neither financially nor professionally capable of executing the project. Consequently, the HRA tried to terminate the contract. Consultants Inc. responded by threatening to sue (Ovans 1985). In 1980, a new contract was negotiated which limited the development to Bay View Tower (CZM 1982). Although a limited contract was retained, throughout the remainder of the project there was considerable tension between the HRA and Consultants Inc. (Penney 1985). A new parcel of land was chosen for Bay View Tower on Nantasket Beach between the ocean and the Weir River. The apartment building was designed to house 150 units of elderly and handicapped people on 11 floors. In order to create a parking lot and shuffleboard courts in the back of the building, 7,500 square feet of salt marsh and clam flats were to be filled. In addition, FEMA's guidelines concerning safe development on barrier beaches required that the first floor of the building be elevated 17 feet (above the 100-year flood plain) and remain unoccupied.
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The Regulatory Process
Before construction of Bay View Tower could begin, the developers were required to obtain approval from a variety of local, state and federal governmental agencies. Permissiofi to fill the salt marsh and clam flats was needed from the Hull Conservation Commission, the local Shellfish Warden, DEQE, and the Corps. In addition, because federal money and permits were being sought the entire project was subject to federal consistency review by CZM. Also, federal Executive Orders governing construction on barrier beaches mandated FEMA's guidelines be met before HUD could agree to finance the project. In April 1980, Consultants Inc. filed a Notice of Intent with the Hull Conservation Commission and received immediate approval to begin construction. In May, however, the DEQE Northeast Regional office ordered the developers to halt all work until the Commissioner reviewed the project under the Massachusetts Wetlands Protection Act which prevented the destruction of salt marshes and clam flats. Consultants Inc. was notified that it had to await a Superceding Order of Conditions from the DEQE stipulating the terms under which the project could proceed (CZM 1982). DEQE notified the Massachusetts Executive Office of Environmental Affairs (EOEA) about the proposed project. Under the Massachusetts Environmental Protection Act, EOEA can demand that project proponents prepare an Environmental Impact Report (EIR) for any development which might cause adverse impacts to the environment. In response to EOEA's request for information on the project, Consultants Inc. filed an Environmental Notification Form with the State in June. Along with the required information, Consultants Inc. sent a letter from the HRA which stated that the town desperately needed this housing as well as the anticipated jobs and tax revenue. In very direct language, the HRA warned EOEA not to delay this project (CZM 1982). In a decision which surprised and angered many people following this case, the EOEA found that, under MEPA, an EIR was not required (Anderson 1985). Instead, the developers were informed that they would need a variance from the Wetlands Protection Act which prohibits the destruction of the wedands. The decision to grant a variance was to be made by the Commissioner of DEQE following an adjudicatory hearing. It seems that EOEA felt this was a straightforward case and therefore an EIR requirement would cause unnecessary delays (Clayton 1985). In retrospect, the decision precipitated a long discovery process which ultimately contributed to the project's demise. Next, Consultants Inc. filed a permit request from the Corps to fill the wetlands and continued negotiations with HUD regarding the financing. The Corps notified the developers that they would not make a decision on the permit request until the State adjudicatory hearing was completed (DeSista 1985). HUD agreed to finance Bay View Tower, providing the developers met FEMA's guidelines concerning safe design features on barrier beaches. Concurrent with these activities, in 1980, Governor Edward King issued Ex-
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ecutive Order No. 181 for Barrier Beaches directing all state agencies to adopt specific policies to reduce future storm damage on Massachusetts' barrier beaches. The Order was issued in response to the 1978 Blizzard which caused $180 million in coastal damage, much of it on barrier beaches. CZM was named the coordinating agency of this executive order and was directed to discourage development in these areas. Since an EIR was not required by the EOEA, there were no requirements for public hearings on the Bay View Tower Project. The Corps and HUD had both published public notices of their pending decisions and had received negative responses from CZM. Although the Massachusetts Association of Conservation Commissions (MACC), the Massachusetts Audubon Society, and the US Department of Interior Fish and Wildlife Service also sent negative comments, the public notices generated very little response (Penney 1985).
The Adjudicatory H e a r i n g In order to obtain a variance from Section 36 of the Coastal Wetlands Regulations which prohibits the destruction of a salt marsh, the DEQE Commissioner must make a finding that such a variance will provide the same degree of protection to the interests of the Act as application of these regulations and that the variance is necessary to accommodate an overriding eonummity, regional, state, or national public interest (Massachusetts DEQE 1981).
This was the first time that a variance had ever been sought from the Coastal Wetlands Regulations. Consultants Inc. had to prove that unless they filled the wetlands, the proposal would not be possible and that this project met an overriding public interest (Lewis 1985). The Adjudicatory Hearing was held over a five-day period in January 1981 and focused on three issues: the establishment of compensatory salt marsh, the relocation of shellfish and the impact of the proposed building on storm damage and flood control concerns.
Salt Marsh Relocation All the parties agreed that the salt marsh was biologically significant to marine fisheries and to land containing shellfish, as well as physically significant to the interests of storm damage prevention. Since destruction of the salt marsh wa~, requested in order to build a parking lot and shuffleboard courts, the CZM stafl argued that destruction of the wetlands was not justified (Penney 1985). Con. sultants Inc. pointed out that wetlands reconstruction had been successfull3 executed several times in the past. The Hearing Officer found that if the devel opers replanted I00 percent of the marsh grass removed from the site to anothe location, supplemented by an additional 25 percent of nursery grown stock, shq
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would accept the plan. CZM insisted that this be done according to their guidelines and that the new location would have to be monitored for two years to ensure its success. The Hearing Officer next examined whether the project would meet an overriding local, community, state or national public interest. Since she had received over 30 letters from various town officials in Hull claiming their dire need for elderly housing and had not received any letters opposing the project, the Hearing Officer found there was an overriding need (Lewis 1985). CZM staff argued that the project could be redesigned or scaled down to avoid destruction of the wetlands. They argued that the HRA owned other less environmentally sensitive sites on which the project could be located. Consultants Inc. protested that Bay View Tower had already been relocated once and that they had done considerable work to meet FEMA's guidelines for this site. They claimed that, at such a late date, resiting would terminate the project. The Hearing Officer decided that the developers had already suffered from a long and complex regulatory process and that DEQE and CZM staff should have pointed out their problems with the project at an earlier date before Consultants Inc. had invested so much time. While she agreed that destruction of the wetlands was not vital to this elderly housing project, she agreed to apply a lenient interpretation of the necessity clause (Lewis 1985). Her decision raised the question of whose responsibility it is to inform the applicant of all the issues which may arise in the project review. According to Gregor McGregor, the MACC attorney, the burden lies on the applicant to learn the regulations (CZM files, 1981-1982). Shellfish Relocation
Consultants Inc. planned to relocate 57 bushels of clams, whose habitat would be destroyed, to a new off-site location. However, before the Hearing Officer would authorize the removal of the shellfish, she determined that Consultants Inc. would have to obtain approval from the Hull Shellfish Warden and the State Division of Marine Fisheries regarding the suitability of a new site and the method of proposed relocation. As long as CZM agreed that it was technically feasible and Hull's Shellfish Warden could find a productive habitat in which to relocate them, the Hearing Officer decided that approval was the jurisdiction of the Division of Marine Fisheries. Displeased with this outcome, Michael Penney, Coastal Planner, said that the developers should have been required to satisfy state regulations designed to prevent alterations to clam flat areas. These regulations were promulgated in recognition of the unique and probably unreproducible characteristics of especially productive clam fiats such as that at the Bay View Tower site. Simply relocating 57 bushels of clams would not insure their long-term survival. If the clams were relocated to an area which was at its carrying capacity, the clams would not survive because this environment was supporting all the clams it could. If the area were below its carrying capacity,
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there may be a reason, such as pollution, which would prevent the new clams from successfully reproducing. Therefore, Penney felt that a variance from this regulation should have been required (Penney 1985).
Storm Damage Prevention and Flood Control Since the DEQE's Superceding Order of Conditions denying the project had only raised objections to salt marsh fill and destruction of tidal flats, storm damage prevention and flood control concerns were new issues. In addition, this was the first Adjudicatory Hearing since the Executive Order for Barrier Beaches was issued, and there were no precedents. The Hearing Officer decided to address the following questions: Was the area actually a barrier beach? Would the foundation of the building cause increased velocity of waves or storm overwash during flooding? If so, would this pose unsafe conditions or cause harm to the coastal resources (Lewis 1985)? Consultants Inc. argued that the prior construction of the Metropolitan District Commission (MDC) seawall and the past history of filling and paving of beach and dune areas transformed the natural environment to the point where it should no longer be considered a barrier beach. The Hearing Officer agreed that the usual relationship between beach, dune and backbarrier fiats had been so altered that as long as the safety of the residents and the protection of the coastal resources were sufficiently addressed she would allow development on the site. Next, they discussed whether the foundation of the building would displace flood water, increase the velocity of flow around the building and cause the elevation of flood water to increase in the vicinity of the site. According to FEMA, the agency charged with the management of the Federal Flood Insurance Program, under existing conditions, a 100-year storm would cause water from the ocean to flow over the site to a depth of one foot. Since the first floor of the building was elevated one foot and designed to have the first floor unoccupied, the Hearing Officer determined that the safety of the residents had been sufficiently considered (Lewis 1985). They also looked at flooding conditions on adjacent sites as a result of the building. The developers had shown plans that water levels would rise two inches on Bay Street, the adjacent street. New information was introduced during the heating which showed that the water would rise 14 inches during a 100-year storm. Since there was no agreement on this issue, the Hearing Officer requested that the developers devise grading and drainage plans to prevent adverse impact on adjacent properties. The final approval to develop was contingent on these plans. The Hearing Officer issued the Final Decision approving construction ol Bay View Tower in April 1981. Although the Hearing Officer had expected that the grading and drainag~ patterns would be completed quickly, it was not until June 1982, that the Sup plementary Final Decision was issued approving the project once again. Durin I
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that 14-month period, DEQE, CZM, HUD, FEMA and Consultants Inc. worked out new design features to better insure flood prevention. While they were working on these details, a new issue emergedmthe need for an evacuation plan in the event of a flood. Even though there would not be anyone occupying the first floor, chances were high that a storm would cause the electricity to fail, rendering the elevators useless. Furthermore, if water levels were going to rise 14 inches, there not only had to be a plan to get the elderly and handicapped people out of the building, but out of the surrounding area as well (Lewis 1985). Post-Hearing Decisions
Although the DEQE had issued its decision to grant the variance and approve the project, the developers still had not completed the safety and evacuation plans to FEMA's satisfaction (Mearley 1985). HUD had previously agreed to finance Bay View Tower, however, in light of these controversies, they avoided making a final commitment until all issues were resolved. While FEMA does not have authority to deny federal projects, Executive Order No. 11988 for Flood Plain Management, issued by President Carter in 1977, requires that all federal programs involved in development on a flood plain to follow FEMA's procedures to ensure sound development and residential safety. FEMA had repeatedly advised against financing the Bay View Tower project because it considered the design features to be inadequate (CZM 1982). When concern shifted to" the evacuation plans, FEMA claimed that the buses would not be able to drive down Bay Street if it were flooded with 14 inches of water. By this time, Consultants Inc. were becoming extremely frustrated and tried to claim that water levels on adjacent streets were immaterial because they planned to evacuate the residents before the flooding occurred (CZM 1982). While the state and federal agencies were going back and forth with the details of the site and the evacuation plans, the Massachusetts Association of Conservation Commissions (MACC) stepped up their efforts to stop this project. They wrote many letters to Senator Kennedy, Governor King, the Corps of Engineers and HUD requesting that financing be denied (Anderson 1985). The letters pointed out the deficiencies in the plans which they felt would accrue great longterm costs to the town and the state based on previous storm damage in the area. In addition, they argued that an area prone to flooding was not the proper place to locate elderly and handicapped people who would have difficulty evacuating a highrise building in the event of loss of electricity, lights and elevators and flooding of streets surrounding the building. Finally, they wrote to HUD threatening to sue if the mortgage insurance was granted (Anderson 1985). The momentum building up against this proposal by state environmental groups, led by the MACC peaked in late 1981 when the Conservation Law Foundation of New England, Inc. filed suit against HUD on the grounds that they had failed to abide by the Presidential Executive Order No. 11988 mandating limited federal in-
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volvement in developments on flood plains and wetlands. Within the year, faced with a lawsuit and internal controversy regarding FEMA's guidelines, HUD denied Consultants Inc. the mortgage insurance (Shelley 1985). By this time, Consultants Inc. were becoming desperate for financing. They quickly filed an application with the Massachusetts Housing and Finance Agency. John Bewick, the Secretary of Environmental Affairs, responded by informing Consultants Inc. that Executive Order No. 181 strongly prohibited state financing of development on barrier beaches. Bewick informed Consultants Inc. that any request for financing would be in direct contradiction to Governor King's Executive Order No. 181 and would not be approved (CZM 1982). Concurrent with these events, the situation in Hull was becoming even more controversial. Many people no longer wanted Consultants Inc. involved in this project. The public pressure to remove them from any redevelopment efforts mounted. At the same time, local residents began to feel that the HRA had not handled this situation properly (Russell 1985). While some felt the whole project made no sense, it seems that most residents were more concerned with the alleged ineptitude of the developers than with concerns of wetlands or tenant safety. In April 1981, a change in the balance of power occurred in Hull. The Town of Selectmen fired the entire HRA and at a Town Meeting the area was rezoned to allow nothing higher than 40 feet to be built there. The developer, in turn, has sued the town for breach of contract (Ovans 1985).
Conclusion The Bay View Tower project, if constructed, would have had important social, economic and environmental consequences. Generally, projects of this nature are not subject to an environmental impact assessment process that enables coordination between regulatory agencies and allows for public review. In this case, however, the decision by EOEA not to require an Environmental Impact Report resulted in a fragmented decision-making process. Rather than a tight examination of the proposal's merits, semi-autonomous decisions made with little public awareness dictated the outcome. Ultimately, this diffusion of interests and decisions prevented the construction of Bay View Tower.
REFERENCES Alabrandy, F. 1985. personal communication. Anderson, Nancy. 1985. personal communication. Clayton, G. 1985. personal communication. De Sista, Bob. 1985. personal communication. Lewis, P. 1985. personal communication. Massachusetts. Department of Environmental Quality Engineering (DEQE). 1980. Proceedings of the Bay View Tower Adjudicatory Hearing. Boston: Massachusetts DEQE.
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Massachusetts. Office of Coastal Zone Management (CZM). 1982. files concerning the Bay View Tower Project, 1978-1982. Boston: Massachusetts CZM. Mearley, Kevin. 1985. personal communication. McCabe, C. 1985. personal communication. Ovans, S. 1985. personal communication. Permey, M. 1985. personal communication. Russell, M. 1985. personal communication. Shelley, P. 1985. personal communication.
ENVIRON IMPACT ASSES REV 1986:6:173-182
BAY VIEW TOWER, HULL, MASSACHUSETTS
PHYLLIS L. ROBINSON
Hull, Massachusetts is a working-class community situated on a narrow, sevenand-one-half mile long peninsula jutting out from the southern shoreline of Massachusetts Bay. Although Hull is endowed with 24 miles of beaches and shoreline, years of poor economic conditions have made development a much higher priority among the town's residents than environmental protection. However, in recent years, the town has learned that its coastal environment influences the shape of its development and cannot be ignored. For over 20 years, Hull has been trying to attract development to revitalize its depressed economy. As part of this goal, the Hull Redevelopment Authority (HRA) acquired an 18-acre tract of land on Nantasket Beach in the mid-1960's which it hoped to redevelop into homes and businesses (Figure 1). In 1979, after years of unsuccessful development attempts, a contract to build on this site was finally negotiated with Consultants Inc., a private firm from Providence, Rhode Island. The first phase of the redevelopment package included an 1 l-story, 150-unit apartment building, called Bay View Tower, for elderly and handicapped people. Initially, the developers had the full support of the HRA and most of Hulrs residents (Alabrandy 1985). However, a difficult and complex implementation process resulting from the design and siting of Bay View Tower would later diminish the project's popularity. The high-rise building was sited on a barrier beach and required filling coastal wetlands, fragile resources protected under state and federal laws. In addition, barrier beaches are considered unsafe for development because they are subject to severe storm damage and flooding. For these reasons, the site was criticized as a poor location to house elderly and handicapped people. Consultants Inc. needed a variety of local, state and federal permits before
© 1986 Elsevier Science Publishing Co., Inc. 52 Vanderbilt Avenue, New York, NY 10017
0195-9255/86/$3.5(
i74
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P. L, ROBINSON
Figure 1. Nantasket Beach at Hull, the area of proposed Bay View Tower project. Source: Department of Public Works, Massachusetts. they could begin construction of Bay View Tower. In order to determine if they would be allowed to fillin the wetlands, permits were needed from the Hull Conservation Commission, the Massachusetts Department of Environmental Quality Engineering (DEQE) and the US Army Corps of Engineers (Corps). In addition, the project was subject to federal consistency review by the Massachusetts Office of Coastal Zone Management (CZM), a management and planning agency mandated to promote economically and ¢nviromnentally sound development in coastal areas. Finally, because the developers were seeking financing from the US Department of Housing and Urban Development (HUD), federal regulations required that the design features and evacuation plans ensuring the occupants' safety meet the Federal Emergency Management Agency's (FEMA) guidelines.
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The combination of a poorly designed project, multiple government actors with different mandates and an environmentally sensitive site led to the total collapse of the Bay View Tower Project. In the absence of a centralized environmental decision-making process which could pull together these diffuse elements and incorporate public review, a series of individual, often contradicto/y decisions were made at different governmental levels. Ultimately, local and state approval was obtained to fill in the wetlands. However, controversy over the occupants' safety and evacuation plans led HUD to retract its pledge for financial assistance (Shelley 1985). The town, angered by the developer's insolvency, eventually voted to rezone the area. The developers, in turn, sued the town for breach of contract (Ovans 1985). Bay View Tower was never built; but this was due more to an evolving awareness of the project's defects than to a single decision based on its merits.
The Proposal In 1979, Consultants Inc. signed a contract with the Hull Redevelopment Agency (HRA) to build homes and businesses on its 18-acre parcel of land.,The HRA and most of Hull's residents hoped that this development would boost the town's depressed economy (McCabe 1985). As a special enticement to Consultants Inc., the I-IRA allowed the developers to build an apartment building for elderly and handicapped people as the first phase of the redevelopment package (Russell 1985). The project, Bay View Tower, was to be financed by HUD's Section 8 program which guarantees financing for twenty years. Over the course of the next year, Consultants Inc. ran into many problems trying to secure financing for both the private and the Section 8 housing projects. Many town officials grew impatient with the delays and thought that the developers were neither financially nor professionally capable of executing the project. Consequently, the HRA tried to terminate the contract. Consultants Inc. responded by threatening to sue (Ovans 1985). In 1980, a new contract was negotiated which limited the development to Bay View Tower (CZM 1982). Although a limited contract was retained, throughout the remainder of the project there was considerable tension between the HRA and Consultants Inc. (Penney 1985). A new parcel of land was chosen for Bay View Tower on Nantasket Beach between the ocean and the Weir River. The apartment building was designed to house 150 units of elderly and handicapped people on 11 floors. In order to create a parking lot and shuffleboard courts in the back of the building, 7,500 square feet of salt marsh and clam flats were to be filled. In addition, FEMA's guidelines concerning safe development on barrier beaches required that the first floor of the building be elevated 17 feet (above the 100-year flood plain) and remain unoccupied.
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The Regulatory Process
Before construction of Bay View Tower could begin, the developers were required to obtain approval from a variety of local, state and federal governmental agencies. Permissiofi to fill the salt marsh and clam flats was needed from the Hull Conservation Commission, the local Shellfish Warden, DEQE, and the Corps. In addition, because federal money and permits were being sought the entire project was subject to federal consistency review by CZM. Also, federal Executive Orders governing construction on barrier beaches mandated FEMA's guidelines be met before HUD could agree to finance the project. In April 1980, Consultants Inc. filed a Notice of Intent with the Hull Conservation Commission and received immediate approval to begin construction. In May, however, the DEQE Northeast Regional office ordered the developers to halt all work until the Commissioner reviewed the project under the Massachusetts Wetlands Protection Act which prevented the destruction of salt marshes and clam flats. Consultants Inc. was notified that it had to await a Superceding Order of Conditions from the DEQE stipulating the terms under which the project could proceed (CZM 1982). DEQE notified the Massachusetts Executive Office of Environmental Affairs (EOEA) about the proposed project. Under the Massachusetts Environmental Protection Act, EOEA can demand that project proponents prepare an Environmental Impact Report (EIR) for any development which might cause adverse impacts to the environment. In response to EOEA's request for information on the project, Consultants Inc. filed an Environmental Notification Form with the State in June. Along with the required information, Consultants Inc. sent a letter from the HRA which stated that the town desperately needed this housing as well as the anticipated jobs and tax revenue. In very direct language, the HRA warned EOEA not to delay this project (CZM 1982). In a decision which surprised and angered many people following this case, the EOEA found that, under MEPA, an EIR was not required (Anderson 1985). Instead, the developers were informed that they would need a variance from the Wetlands Protection Act which prohibits the destruction of the wedands. The decision to grant a variance was to be made by the Commissioner of DEQE following an adjudicatory hearing. It seems that EOEA felt this was a straightforward case and therefore an EIR requirement would cause unnecessary delays (Clayton 1985). In retrospect, the decision precipitated a long discovery process which ultimately contributed to the project's demise. Next, Consultants Inc. filed a permit request from the Corps to fill the wetlands and continued negotiations with HUD regarding the financing. The Corps notified the developers that they would not make a decision on the permit request until the State adjudicatory hearing was completed (DeSista 1985). HUD agreed to finance Bay View Tower, providing the developers met FEMA's guidelines concerning safe design features on barrier beaches. Concurrent with these activities, in 1980, Governor Edward King issued Ex-
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ecutive Order No. 181 for Barrier Beaches directing all state agencies to adopt specific policies to reduce future storm damage on Massachusetts' barrier beaches. The Order was issued in response to the 1978 Blizzard which caused $180 million in coastal damage, much of it on barrier beaches. CZM was named the coordinating agency of this executive order and was directed to discourage development in these areas. Since an EIR was not required by the EOEA, there were no requirements for public hearings on the Bay View Tower Project. The Corps and HUD had both published public notices of their pending decisions and had received negative responses from CZM. Although the Massachusetts Association of Conservation Commissions (MACC), the Massachusetts Audubon Society, and the US Department of Interior Fish and Wildlife Service also sent negative comments, the public notices generated very little response (Penney 1985).
The Adjudicatory H e a r i n g In order to obtain a variance from Section 36 of the Coastal Wetlands Regulations which prohibits the destruction of a salt marsh, the DEQE Commissioner must make a finding that such a variance will provide the same degree of protection to the interests of the Act as application of these regulations and that the variance is necessary to accommodate an overriding eonummity, regional, state, or national public interest (Massachusetts DEQE 1981).
This was the first time that a variance had ever been sought from the Coastal Wetlands Regulations. Consultants Inc. had to prove that unless they filled the wetlands, the proposal would not be possible and that this project met an overriding public interest (Lewis 1985). The Adjudicatory Hearing was held over a five-day period in January 1981 and focused on three issues: the establishment of compensatory salt marsh, the relocation of shellfish and the impact of the proposed building on storm damage and flood control concerns.
Salt Marsh Relocation All the parties agreed that the salt marsh was biologically significant to marine fisheries and to land containing shellfish, as well as physically significant to the interests of storm damage prevention. Since destruction of the salt marsh wa~, requested in order to build a parking lot and shuffleboard courts, the CZM stafl argued that destruction of the wetlands was not justified (Penney 1985). Con. sultants Inc. pointed out that wetlands reconstruction had been successfull3 executed several times in the past. The Hearing Officer found that if the devel opers replanted I00 percent of the marsh grass removed from the site to anothe location, supplemented by an additional 25 percent of nursery grown stock, shq
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would accept the plan. CZM insisted that this be done according to their guidelines and that the new location would have to be monitored for two years to ensure its success. The Hearing Officer next examined whether the project would meet an overriding local, community, state or national public interest. Since she had received over 30 letters from various town officials in Hull claiming their dire need for elderly housing and had not received any letters opposing the project, the Hearing Officer found there was an overriding need (Lewis 1985). CZM staff argued that the project could be redesigned or scaled down to avoid destruction of the wetlands. They argued that the HRA owned other less environmentally sensitive sites on which the project could be located. Consultants Inc. protested that Bay View Tower had already been relocated once and that they had done considerable work to meet FEMA's guidelines for this site. They claimed that, at such a late date, resiting would terminate the project. The Hearing Officer decided that the developers had already suffered from a long and complex regulatory process and that DEQE and CZM staff should have pointed out their problems with the project at an earlier date before Consultants Inc. had invested so much time. While she agreed that destruction of the wetlands was not vital to this elderly housing project, she agreed to apply a lenient interpretation of the necessity clause (Lewis 1985). Her decision raised the question of whose responsibility it is to inform the applicant of all the issues which may arise in the project review. According to Gregor McGregor, the MACC attorney, the burden lies on the applicant to learn the regulations (CZM files, 1981-1982). Shellfish Relocation
Consultants Inc. planned to relocate 57 bushels of clams, whose habitat would be destroyed, to a new off-site location. However, before the Hearing Officer would authorize the removal of the shellfish, she determined that Consultants Inc. would have to obtain approval from the Hull Shellfish Warden and the State Division of Marine Fisheries regarding the suitability of a new site and the method of proposed relocation. As long as CZM agreed that it was technically feasible and Hull's Shellfish Warden could find a productive habitat in which to relocate them, the Hearing Officer decided that approval was the jurisdiction of the Division of Marine Fisheries. Displeased with this outcome, Michael Penney, Coastal Planner, said that the developers should have been required to satisfy state regulations designed to prevent alterations to clam flat areas. These regulations were promulgated in recognition of the unique and probably unreproducible characteristics of especially productive clam fiats such as that at the Bay View Tower site. Simply relocating 57 bushels of clams would not insure their long-term survival. If the clams were relocated to an area which was at its carrying capacity, the clams would not survive because this environment was supporting all the clams it could. If the area were below its carrying capacity,
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there may be a reason, such as pollution, which would prevent the new clams from successfully reproducing. Therefore, Penney felt that a variance from this regulation should have been required (Penney 1985).
Storm Damage Prevention and Flood Control Since the DEQE's Superceding Order of Conditions denying the project had only raised objections to salt marsh fill and destruction of tidal flats, storm damage prevention and flood control concerns were new issues. In addition, this was the first Adjudicatory Hearing since the Executive Order for Barrier Beaches was issued, and there were no precedents. The Hearing Officer decided to address the following questions: Was the area actually a barrier beach? Would the foundation of the building cause increased velocity of waves or storm overwash during flooding? If so, would this pose unsafe conditions or cause harm to the coastal resources (Lewis 1985)? Consultants Inc. argued that the prior construction of the Metropolitan District Commission (MDC) seawall and the past history of filling and paving of beach and dune areas transformed the natural environment to the point where it should no longer be considered a barrier beach. The Hearing Officer agreed that the usual relationship between beach, dune and backbarrier fiats had been so altered that as long as the safety of the residents and the protection of the coastal resources were sufficiently addressed she would allow development on the site. Next, they discussed whether the foundation of the building would displace flood water, increase the velocity of flow around the building and cause the elevation of flood water to increase in the vicinity of the site. According to FEMA, the agency charged with the management of the Federal Flood Insurance Program, under existing conditions, a 100-year storm would cause water from the ocean to flow over the site to a depth of one foot. Since the first floor of the building was elevated one foot and designed to have the first floor unoccupied, the Hearing Officer determined that the safety of the residents had been sufficiently considered (Lewis 1985). They also looked at flooding conditions on adjacent sites as a result of the building. The developers had shown plans that water levels would rise two inches on Bay Street, the adjacent street. New information was introduced during the heating which showed that the water would rise 14 inches during a 100-year storm. Since there was no agreement on this issue, the Hearing Officer requested that the developers devise grading and drainage plans to prevent adverse impact on adjacent properties. The final approval to develop was contingent on these plans. The Hearing Officer issued the Final Decision approving construction ol Bay View Tower in April 1981. Although the Hearing Officer had expected that the grading and drainag~ patterns would be completed quickly, it was not until June 1982, that the Sup plementary Final Decision was issued approving the project once again. Durin I
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that 14-month period, DEQE, CZM, HUD, FEMA and Consultants Inc. worked out new design features to better insure flood prevention. While they were working on these details, a new issue emergedmthe need for an evacuation plan in the event of a flood. Even though there would not be anyone occupying the first floor, chances were high that a storm would cause the electricity to fail, rendering the elevators useless. Furthermore, if water levels were going to rise 14 inches, there not only had to be a plan to get the elderly and handicapped people out of the building, but out of the surrounding area as well (Lewis 1985). Post-Hearing Decisions
Although the DEQE had issued its decision to grant the variance and approve the project, the developers still had not completed the safety and evacuation plans to FEMA's satisfaction (Mearley 1985). HUD had previously agreed to finance Bay View Tower, however, in light of these controversies, they avoided making a final commitment until all issues were resolved. While FEMA does not have authority to deny federal projects, Executive Order No. 11988 for Flood Plain Management, issued by President Carter in 1977, requires that all federal programs involved in development on a flood plain to follow FEMA's procedures to ensure sound development and residential safety. FEMA had repeatedly advised against financing the Bay View Tower project because it considered the design features to be inadequate (CZM 1982). When concern shifted to" the evacuation plans, FEMA claimed that the buses would not be able to drive down Bay Street if it were flooded with 14 inches of water. By this time, Consultants Inc. were becoming extremely frustrated and tried to claim that water levels on adjacent streets were immaterial because they planned to evacuate the residents before the flooding occurred (CZM 1982). While the state and federal agencies were going back and forth with the details of the site and the evacuation plans, the Massachusetts Association of Conservation Commissions (MACC) stepped up their efforts to stop this project. They wrote many letters to Senator Kennedy, Governor King, the Corps of Engineers and HUD requesting that financing be denied (Anderson 1985). The letters pointed out the deficiencies in the plans which they felt would accrue great longterm costs to the town and the state based on previous storm damage in the area. In addition, they argued that an area prone to flooding was not the proper place to locate elderly and handicapped people who would have difficulty evacuating a highrise building in the event of loss of electricity, lights and elevators and flooding of streets surrounding the building. Finally, they wrote to HUD threatening to sue if the mortgage insurance was granted (Anderson 1985). The momentum building up against this proposal by state environmental groups, led by the MACC peaked in late 1981 when the Conservation Law Foundation of New England, Inc. filed suit against HUD on the grounds that they had failed to abide by the Presidential Executive Order No. 11988 mandating limited federal in-
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volvement in developments on flood plains and wetlands. Within the year, faced with a lawsuit and internal controversy regarding FEMA's guidelines, HUD denied Consultants Inc. the mortgage insurance (Shelley 1985). By this time, Consultants Inc. were becoming desperate for financing. They quickly filed an application with the Massachusetts Housing and Finance Agency. John Bewick, the Secretary of Environmental Affairs, responded by informing Consultants Inc. that Executive Order No. 181 strongly prohibited state financing of development on barrier beaches. Bewick informed Consultants Inc. that any request for financing would be in direct contradiction to Governor King's Executive Order No. 181 and would not be approved (CZM 1982). Concurrent with these events, the situation in Hull was becoming even more controversial. Many people no longer wanted Consultants Inc. involved in this project. The public pressure to remove them from any redevelopment efforts mounted. At the same time, local residents began to feel that the HRA had not handled this situation properly (Russell 1985). While some felt the whole project made no sense, it seems that most residents were more concerned with the alleged ineptitude of the developers than with concerns of wetlands or tenant safety. In April 1981, a change in the balance of power occurred in Hull. The Town of Selectmen fired the entire HRA and at a Town Meeting the area was rezoned to allow nothing higher than 40 feet to be built there. The developer, in turn, has sued the town for breach of contract (Ovans 1985).
Conclusion The Bay View Tower project, if constructed, would have had important social, economic and environmental consequences. Generally, projects of this nature are not subject to an environmental impact assessment process that enables coordination between regulatory agencies and allows for public review. In this case, however, the decision by EOEA not to require an Environmental Impact Report resulted in a fragmented decision-making process. Rather than a tight examination of the proposal's merits, semi-autonomous decisions made with little public awareness dictated the outcome. Ultimately, this diffusion of interests and decisions prevented the construction of Bay View Tower.
REFERENCES Alabrandy, F. 1985. personal communication. Anderson, Nancy. 1985. personal communication. Clayton, G. 1985. personal communication. De Sista, Bob. 1985. personal communication. Lewis, P. 1985. personal communication. Massachusetts. Department of Environmental Quality Engineering (DEQE). 1980. Proceedings of the Bay View Tower Adjudicatory Hearing. Boston: Massachusetts DEQE.
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Massachusetts. Office of Coastal Zone Management (CZM). 1982. files concerning the Bay View Tower Project, 1978-1982. Boston: Massachusetts CZM. Mearley, Kevin. 1985. personal communication. McCabe, C. 1985. personal communication. Ovans, S. 1985. personal communication. Permey, M. 1985. personal communication. Russell, M. 1985. personal communication. Shelley, P. 1985. personal communication.