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A Gateway to Clean Energy on Cape Cod

Offshore Wind Projects Face Rising Challenges

Massachusetts law defines “Gateway mu­nicipalities” as those with populations be­tween 35,000 and 250,000, where median household incomes and percentages of resi­dents with bachelor’s degrees are below the state average.

House Speaker Ronald Mariano speaks to House colleagues and wind energy advocates as he tours the Block Island Wind Farm located about four miles off the coast of Block Island in 2021.

Many are former manufacturing centers that offer “gateways” to better lives for lower income and immigrant families. Al­though the resort town of Barnstable fits the demographic requirements of a gateway municipality, it lacks the typical industrial history and immigrant cultures.

But as offshore wind turbine projects take root in federal waters south of Mar­tha’s Vineyard, Barnstable is becoming the gateway for hundreds of megawatts of clean electrical energy.

Offshore wind energy is connected to the regional power grid through undersea ca­bles. Barnstable’s coastline along Nantucket Sound is well-suited for cable landing sites.

There are three offshore wind projects in various stages of development and permit­ting that need cable landing sites in Barnsta­ble – Vineyard Wind 1 with a landing site at Covell’s Beach, New England Wind 1 with a future landing site at Craigville Beach, and New England Wind 2 with a proposed land­ing site at Dowses Beach. Transmission lines will carry electricity to substations within Barnstable, then to the regional grid. Avangrid Renewables is behind these proj­ects.

Offshore wind projects require numerous federal, state and local permits. Federal law requires environmental reviews by the Bu­reau of Ocean Energy Management (BOEM), the U.S. Army Corp of Engineers (USACE) and the Environmental Protection Agency (EPA).

In Massachusetts, the Department of En­vironmental Protection conducts its own project reviews, and the Energy Facilities Siting Board (EFSB), Department of Trans­portation, Department of Public Utilities and other state agencies also scrutinize these projects. Energy infrastructure lying within the borders of cities and towns requires wet­lands orders of conditions and often zoning relief. Proponents are also expected to enter into host community agreements that pro­vide economic benefits to municipalities that accommodate energy infrastructure.

Agreement Governs Relationship with Town

Vineyard Wind 1 has secured all required permits, and construction is underway 15 miles south of Martha’s Vineyard. The cable landing at Covell’s Beach and related on­shore infrastructure is in place. The com­pleted project is expected to generate 800 megawatts of electricity – enough for 400,000 homes. Damage to a turbine blade recently caused fiberglass shards to wash up on Cape and Islands beaches, delaying offshore construction, but there is optimism that this project will reach its full potential.

During the permitting process, Vineyard Wind 1 entered into a host community agreement (HCA) with Barnstable, provid­ing assurances that the project will not harm the town’s public water supply. Per­haps more importantly, the HCA requires Vineyard Wind 1 to make payments to the town of up to $16 million, spread out over a 25-year period, in addition to ad valorem tax payments. In exchange, the town must support the project’s local permitting appli­cations.

New England Wind 1 and 2 are going through separate permitting processes. To­gether they should generate 2,000 mega­watts of electricity when complete. Both projects received BOEM approvals last year.

New England Wind 1 is further along in obtaining permits. It already has permits from the USACE and EPA. For state per­mits, New England Wind 1 has approval from the EFSB, and its environmental im­pact statement has been accepted, allowing the project to proceed with state permitting. The project proponent entered into an HCA with Barnstable in 2022, offering the town similar financial incentives to those offered to Vineyard Wind 1. New England Wind 1 construction is expected to begin this year.

Uncertain Financial Prospects for Industry

New England Wind 2’s future is less cer­tain. This project suffered a setback last Oc­tober, when the Barnstable Town Council voted to oppose the cable landing site at Dowses Beach. The non-binding vote leaves open the possibility of town council support for a different landing site in Barnstable. Perhaps another HCA with generous finan­cial incentives can sweeten the pot enough to appease this opposition. Meanwhile, Avangrid Renewables continues to pursue state permits for New England Wind 2.

Offshore wind turbines projects have their challenges. Construction has stalled or halted on some projects, because of in­creased interest rates and costs, and supply chain difficulties. The newly-installed Trump administration is less supportive of clean energy projects than its predecessor, creating insecurity for an industry that re­lies heavily on government subsidies and tax credits, as well as offshore leases in fed­eral waters.

Nevertheless, Vineyard Wind is now par­tially up and running, and New England Wind 1 seems likely to proceed. Although New England Wind 2 remains on the draw­ing board, Barnstable already plays an im­portant role in meeting clean energy goals.

Download the article as seen in Banker & Tradesman on January 27, 2025. Learn more about Christopher R. Vaccaro.

DALTON & FINEGOLD ADDS LOONEY COHEN & AISENBERG

Dalton & Finegold, LLP, a Massachusetts-based law firm renowned for its expertise in real estate law, estate planning, and litigation, is excited to announce the addition of Looney Cohen & Aisenberg, LLP, a highly respected 30-year-old Boston-based law firm offering closely aligned services. Three partners, a senior associate, and one additional supporting staff member will join Dalton & Finegold, bringing decades of experience representing lenders, corporations, business owners and investors in high-value transactions and litigation matters. The addition sustains the positive momentum and rapid growth of Dalton & Finegold and coincides with the relocation of its Boston office to 125 High Street.

 

Looney Cohen & Aisenberg LLP was founded in 1995 with Jim Cohen and David Aisenberg acting as two of the founding partners. In the ensuing years, the firm earned an AV rating from Martindale-Hubbell, the highest rating possible. With a focus on commercial real estate, finance transactions, and general business litigation, the addition of Looney Cohen & Aisenberg will expand Dalton & Finegold’s commercial real estate and general litigation capabilities in the Greater Boston region.

 

“We are honored to welcome the highly esteemed Looney Cohen & Aisenberg team to Dalton & Finegold to bolster our commercial lending and litigation teams,” said Barry Finegold, Co-Founder and Managing Partner at Dalton & Finegold. “Beyond the complementary services, we felt strong alignment on the client-centric approach, making the transaction a natural fit. The addition of Looney Cohen & Aisenberg’s experienced team represents the latest milestone in the firm’s growth and gives us greater depth in complex and high stakes litigation. We look forward to their contributions to these efforts in the years to come.”

 

Key team members joining Dalton & Finegold as partners include Jim Cohen, who specializes in commercial real estate and distressed debt transactions; David Aisenberg, an expert in business and real estate litigation; Steven Kasten, who focuses on complex business disputes and healthcare representation; and Senior Counsel Jesse Geller. The newly ingrained team will work out of the Boston office, which, effective February 1st, moved to 125 High Street. Dalton & Finegold’s new Boston office will provide an enhanced environment for collaboration while accommodating the newly expanded team.

 

 

ABOUT DALTON AND FINEGOLD

Dalton & Finegold is a full-service civil law firm, proudly meeting the legal needs of individual developers, institutional real estate funds, commercial landlords and tenants, corporations and family offices, privately-owned companies, entrepreneurs, professionals and closely-held and family-owned companies. Regardless of their needs, our clients choose us because they value stability, unwavering devotion and our stellar legal results. https://www.dfllp.com/

CONTACT:

Sean Hathaway

shathaway@issuesgroup.com

(857) 208-5858

Dalton & Finegold Names Paige Shlayen, Esq. and Mckenzie Russell-Masterson, Esq. To Partner

BOSTON, MA – January 16, 2025 – Dalton & Finegold, LLP, a Massachusetts based law firm specializing in real estate law, estate planning, and litigation, is pleased to announce the promotions of Paige Shlayen, Esq. and Mckenzie Russell-Masterson, Esq. to the position of Partner, effective immediately. The appointments recognize their dedication, outstanding achievements in their respective fields, and unwavering commitment to the firm’s core values of delivering powerful results, dedication to clients, and collaboration.

Both Shlayen and Russell-Masterson have demonstrated exceptional performance in the firm’s real estate sector, including growing the footprint beyond Boston. Shlayen has played a pivotal role in expanding the firm’s presence in Newton and the MetroWest area, while Russell-Masterson has been instrumental in Western Massachusetts growth.

“Dalton & Finegold’s entrepreneurial approach to legal services is centered on cultivating a new generation of diverse leaders like Paige and Mckenzie who drive results and excellence across the board,” said Barry Finegold, Co-Founder and Managing Partner at Dalton & Finegold. “We are incredibly proud of their individual growth and achieving Partner in a matter of years. Dalton & Finegold strives to recognize emerging leadership, like Paige and McKenzie, and create pathways for advancement. By rewarding hard work and success with meaningful opportunities, we empower our team to grow, lead, and shape the future of the firm.”

Shlayen was most recently a senior associate at the firm and specializes in residential real estate with a focus on buyer and seller representation. She joined the firm in June of 2020, having previously worked in compliance for Santander Bank, and works out of the Boston office. Shlayen is a graduate of Quinnipiac University and New York Law School.

Russell-Masterson last held the position of associate and specializes in residential real estate, with a focus on home buyers, sellers, and developers. She joined the firm in February 2018 and leads the Longmeadow office while also serving clients from Boston to the Berkshires. Russell-Masterson is a graduate of Saint Anselm College and New England Law.

Dalton & Finegold is proud to celebrate this milestone in Shlayen and Russell-Masterson’s careers and the firm’s ongoing growth in Massachusetts and across the New England region. Their promotions to Partner reflect their individual achievements and commitment to fostering a collaborative and client-focused environment.

ABOUT DALTON & FINEGOLD

Dalton & Finegold is a full-service civil law firm, proudly meeting the legal needs of individual developers, institutional real estate funds, commercial landlords and tenants, corporations and family offices, privately-owned companies, entrepreneurs, professionals and closely-held and family-owned companies. Regardless of their needs, our clients choose us because they value stability, unwavering devotion and our stellar legal results. https://www.dfllp.com/

CONTACT:
Sean Hathaway
shathaway@issuesgroup.com
(857) 208-5858

‘Affordable Housing’ Has a Special Meaning in Massachusetts

State Regulations Set Definitions for Housing Category

Trinity Financial is proposing 700 apartments and condominiums in Charlestown, including 407 income-restricted units, on Austin Street parking lots offered by the city of Boston for a mixed-income development

 Massachusetts residents are familiar with entreaties for production of more “affordable housing” from well-meaning government leaders and housing advocates.

The commonwealth does indeed suffer from a shortage of reasonably priced dwelling units, but before joining the chorus of promoters of “affordable housing,” one might want to consider the meaning of that term, and the consequences of affordable housing initiatives.

The state Executive Office of Housing and Livable Communities (EOHLC) plays a major role in housing development and affordable housing programs. It is responsible for administering local housing authorities and overseeing state-aided housing projects, urban renewal regulations, housing voucher programs, low-income housing tax credits, smart growth zoning and comprehensive permits for affordable housing projects. It also determines whether municipalities are in compliance with the MBTA Communities law.

EOHLC regulations define “affordable housing” as “homeownership or rental housing which is restricted to occupancy by low- or moderate-income households and for which the sales prices or rents are affordable to such households.”  The regulations define “low- or moderate-income households” as those “with gross income at or less than 80 percent of area median household income as most recently determined by the U.S. Department of Housing and Urban Development (HUD) adjusted for household size.”

Housing production is the core of EOHLC’s mission.

Area median household income varies throughout Massachusetts, but it is generally in the vicinity of $100,000 per year. These definitions are essential to EOHLC’s affordable housing programs.

The city of Boston and many other municipalities have their own affordable housing requirements baked into their zoning ordinances and bylaws. Boston’s zoning mandate, known as “Inclusionary Zoning,” is particularly aggressive.

It requires new housing projects with seven or more dwelling units, to set aside up to 20 percent of units as income-re-stricted: 17 percent deed-restricted and another 3 percent set aside for holders of state or federal housing subsidy vouchers.

The Mayor’s Office of Housing (MOH) oversees compliance with Boston’s Inclusionary Zoning ordinance.

Boston Sets Minimum Requirement

In order for affordable housing programs to meet their goals, government agencies, such as EOHLC, MOH and local housing boards, must limit housing prices and rents on affordable units, and determine income eligibility of buyers and renters of those units. These monitoring agencies also must ensure that when affordable units are resold or relet, the household incomes of new occupants do not exceed eligibility limits.

These responsibilities require a lot of effort not only from monitoring agencies, but also from developers, landlords and property managers of affordable units.

To set pricing of affordable units and see that affordable units are only owned by or rented to income-eligible households, developers must accept deed restrictions under affordable housing agreements. These pricing and occupancy restrictions generally last for decades.

Developers intending to sell affordable units to homebuyers are expected to assemble and submit to monitoring agencies marketing plans directed at income-eligible buyers. Developers are sometimes required to give preferences to first-time home buyers, local residents or artists.
The deed restrictions limit resale prices on affordable units, to prevent owners from enjoying profits from a resale, and to verify that buyers meet income eligibility limits. Monitoring agencies must certify that resales meet these requirements.

Challenges in Upkeep and Monitoring

Similar restrictions apply to affordable rental units. Developers must present marketing plans acceptable to monitoring agencies, with limitations on rents and tenant incomes.

Affordable housing restrictions present interesting challenges.

For example, when properties inevitably require capital improvements or replacements, owners need the ability to recover their expenditures. Restrictions on resale prices and rents must be loosened to accommodate these expenditures, which owners of affordable units must verify with monitoring agencies.

Also, affordability restrictions on rental properties should be tailored to address increases to occupants’ income levels. Individuals who have low or moderate incomes when they first join the workforce often enjoy significant pay increases as they acquire skills, experience and responsibilities. Monitoring agencies should have mechanisms to prevent “over-income” households from enjoying the benefits of affordability restrictions intended for lower-income households.

Keeping track of tenant income, and moving over-income households out of affordable units to make room for income eligible households, can be difficult for monitoring agencies.

Affordable housing in Massachusetts has come to mean not inexpensive housing, but instead price-controlled housing set aside for lower-income individuals with associated governmental oversight. Imposing affordable housing requirements on developers might be good public policy, if combined with financial incentives that encourage production of more market-rate housing for the general public.

But, if local governments use overly restrictive zoning limitations to force developers to build affordable housing, and their restrictions result in less overall housing production, then it’s time to reevaluate those limitations.

Download the article as seen in Banker & Tradesman on December 30, 2024. Learn more about Christopher R. Vaccaro.

The Legal Changes CRE Executives Need to Know in 2025

Change Ripples from D.C. and Beacon Hill

By Christopher R. Vaccaro
Special to Banker & Tradesman

 The Greek philosopher Heraclitus stated centuries ago that change is the only constant in life. A few things expected to bring change to the Massachusetts real estate industry in 2025 are discussed below.

The MBTA Communities Act

The MBTA Communities Act requires 177 Massachusetts cities and towns with access to MBTA service, to create at least one zoning district where multifamily housing is permitted as of right. The Executive Office of Housing and Livable Communities’ guidelines set minimum multi-family unit capacities for these MBTA communities. EOHLC issues determinations of compliance to communities that meet its guidelines.

By January, another 130 Massachusetts cities and towns are required to add multifamily zoning districts, expanding development opportunities.

Most MBTA communities have achieved full or interim compliance with EOHLC guidelines, but not the town of Milton. The guidelines require Milton to establish a 50- acre zoning district accommodating at least 2,461 multi-family housing units. Milton’s town government tried to comply, but local opposition thwarted its efforts. The opposition organized a referendum, and Milton’s voters rejected the zoning change.

Attorney General Andrea Campbell promptly sued Milton in the Supreme Judicial Court, seeking an injunction requiring Milton to adopt a compliant zoning amendment.

The attorney general’s suit relies on provisions of the Zoning Act that give courts jurisdiction to enjoin zoning violations. Courts typically use this power against property owners who disregard zoning limitations on building dimensions or uses. The attorney general’s lawsuit to force a municipality to adopt a specific zoning bylaw is an unusual use of the Zoning Act.

The SJC heard arguments on this case in October. It is expected to issue a decision early next year. The real estate community and housing advocacy groups are standing by.

The Affordable Homes Act, enacted last August, includes numerous spending and housing production policies, many of which will take years to deliver results. But one component of the AHA is likely to have a meaningful impact soon.

Affordable Homes Act

The AHA requires that local zoning laws allow at least one accessory dwelling unit (ADU) as-of-right in single-family zoning districts throughout Massachusetts (but not in Boston).

Municipalities cannot require owner occupancy of either ADUs or principal dwellings. The size of an ADU is limited to the lesser of one-half the gross floor area of the principal dwelling or 900 square feet. Reasonable regulations for site plan review, building dimensions and short-term rentals are allowed.

This simple zoning law change has excellent potential to add badly needed dwelling units in Massachusetts.

Offshore Wind Turbine Projects

Massachusetts is expected to be a major staging area for offshore wind turbine projects in federal waters south of Martha’s Vineyards. Vineyard Wind is already under construction, promising to generate clean energy for over 400,000 homes and businesses.

However, Avangrid’s Commonwealth Wind project stalled. That project was expected to generate enough clean energy for over 700,000 homes.

Avangrid originally entered into long-term power purchase agreements (PPAs) with several utility companies at set prices. Later, it sought to undo the PPAs, claiming that the project was now uneconomic because of inflation, higher interest rates, supply chain problems and other disruptions.

The Department of Public Utilities approved the PPAs over Avangrid’s objections, whereupon Avangrid withdrew from the project.

Another clean energy firm may build this project, but President-elect Donald Trump is no proponent of offshore wind turbines, which depend on leases and other financial incentives from the federal government. The growth of this industry in Massachusetts is at risk.

The End of Chevron Deference

Chevron deference is a legal doctrine that gave federal agencies broad latitude to interpret enabling legislation and promulgate regulations.

The U.S. Supreme Court formulated this doctrine four decades ago in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. In that case, the EPA issued new air pollution regulations that eased permit requirements for polluting industries that modify their plants.

The Supreme Court ruled against an environmental watchdog group that challenged the EPA, holding that when Congress implicitly delegates authority to an agency, courts cannot substitute their own construction of the enabling legislation for the reasonable interpretation of the agency’s administrator.

Last June, the Supreme Court overruled Chevron in Loper Bright Enterprises v. Raimondo. Owners of fishing vessels had challenged a National Marine Fisheries Service’s regulation requiring the fishing industry to pay for on-board observers enforcing the service’s fishery management plan.

Courts now must exercise independent judgment in deciding whether an agency acted within its statutory authority. They cannot readily defer to agency interpretations of ambiguous statutes.

Loper gives federal courts more scrutiny over federal agencies’ actions, which is expected to increase litigation involving those actions.

Download the article as seen in Banker & Tradesman on October 28th, 2024. Learn more about Christopher R. Vaccaro.

Beneficial Ownership Information – Filing FinCEN BOI Reports

The Corporate Transparency Act (CTA) mandates that businesses share information to help enhance transparency and combat financial crimes. Any company that meets the reporting requirements of the Financial Crimes Enforcement Network (FinCEN), must file a Beneficial Ownership report by January 1, 2025.

Failure to comply with the BOI reporting requirements may be subject to civil penalties of up to $500 for each day that the violation continues. A person who willfully violates the BOI reporting requirements may also be subject to criminal penalties of up to two years imprisonment and a fine of up to $10,000.

 

Resources:
Small Entity Compliance Guide – Small Entity Compliance Guide | FinCEN.gov
Frequently Asked Questions – Beneficial Ownership Information | FinCEN.gov
Filing BOI Reports – Beneficial Ownership Information Reporting | FinCEN.gov
Five-Minute Demo: How to File BOI – YouTube Video

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