over 40 years of experience
Phillips & Angley
Attorneys & Counselors At Law
An Association of Professional corporations
Let Us Help You. Contact Us Today
866-675-2109617-892-4391
Menu

Discussion With...A Civil Engineer and Registered Land Surveyor

We recently had an opportunity to talk with Bradley C. McKenzie, P.E., Principal, and Shane L. Brenner, PLS, of McKenzie Engineering Group, Inc. (MEG) based out of Danvers and Norwell, Massachusetts, to get a better understanding of their respective professions within the context of permitting and land development. Here is an excerpt from our conversation.

(Answers provided by Bradley C. McKenzie, P.E.)

1. What does a civil engineer do, generally speaking? Are there areas of expertise within that category of engineering?

A civil engineer generally designs the horizontal component of a land development project. Our responsibilities include designing site infrastructure items such as utilities (drainage, sewer, water), roadway design, parking lot design, septic systems, etc We provide land planning, design and construction administration services for residential, commercial, institutional and recreational projects for public and private clients. For most of our projects, we typically get involved in the inception of the projects by providing feasibility studies to identify , development options for clients and advise them how to maximize the use of their land within local, state and federal permitting constraints. Once the design development phase is completed, we file with local boards [and applicable state and federal authorities] for the permitting phase. The most labor-intensive portion for MEG staff is the design development phase.

Within the civil engineering field there are various areas of expertise. I would consider civil engineering to broadly encompass geotechnical, structural, transportation, environmental engineering, sanitary engineering disciplines. At MEG, we have engineers that specialize in [disciplines that include] land planning, utility design (drainage, sewer, water, etc.), septic systems and wastewater treatment facilities, structural and environmental engineering. Some people begin to specialize while in college by choosing a specific discipline, but usually what we see is that in the first 10 years of someone's career, given their experience and the company they may work for, they are exposed to a lot of disciplines and then migrate towards a particular one eventually.

2. Are there any interesting trends that you're currently seeing in land development laws, whether it be at the local, state or federal level, affecting some of your projects? In other words, compared to five or even ten years ago, is it easier or more difficult to permit a project these days? At the local level, where are you seeing the most trends/changes-zoning codes, subdivision regs, board of health, wetlands?

One area that we are seeing more agencies stressing is sustainable design. It's generally been encouraged by the state and sometimes at the local level. Our involvement as civil engineers and with LEED certifications is using sustainable design and using low impact drainage (LID) design, which typically involves less structures like curbing, catch basin and manholes, and more best management practices such as greased swales, and raingadrens and design these features taking into consideration the natural terrain so that they better comport to existing topography and the environment. What we've generally seen since 2005 and 2006 forward, is that the state is trying to expedite permitting processes and remove layers of bureaucracy and inefficiency. For example, the Natural Heritage and Endangered Species Program (NHESP) has developed new regulations that are more tailored and expedite the permit process for certain endangered species. The Department of Environmental Protection (DEP) has eliminated the Sewer Extension Permit Program this summer (2012) and has also introduced an expedited form of wetland permitting when filing notices of intent (NOI).

Also, in 2010, Massachusetts passed the Permit Extension Act, and it was just extended for another two years this summer (2012). That [legislation and extension] has been the single most influential and progressive change that's been made in terms of positive economic impacts to our clients'' projects.

Conversely, while the state government has gone in a positive direction, more towns are developing more stringent zoning and wetland bylaws that result in making local permitting projects more restrictive. There have not been too many substantive changes in permitting land development projects at the federal level.

Other trends we're seeing: A lot of towns have provided inclusionary zoning (affordable housing) components in their zoning bylaws and have added cluster subdivisions, flexible open space, and other overlay districts which allow higher density projects to deter developers someone from permitting comprehensive permit projects under n M.G.L. Ch. 40B. Towns have been more proactive in developing their own affordable housing bylaws, so that they can avoid being targets for 40B and dictate where affordable housing can be developed.

3. How often do your approved projects end up in litigation? What are their main concerns when bringing the appeal?

When it comes to a "neighborhood appeal" at the local level, few. We typically have about two hundred projects a year, and usually less than a handful get appealed. Usually the 40B projects are most of the time appealed by an intervening/neighborhood group and/or the applicant because they don't get the density they requested in their application. The appeal is to the state Housing Appeals Committee.

Interesting. Why do you think that is?

You have to be proactive by designing a project that meets all of the applicable regulations to minimize the opportunity for local boards to deny a project, or a party with standing to appeal it. During the public hearing process we try, to the extent that we can, to address public and board concerns that are raised, and we advise clients to be responsive to their concerns within reason because appeals and litigation is expensive.

4. How often do you provide testimony in litigation? What kind of testimony do civil engineers typically provide in litigation?

For land development project it has been less frequent than in the past. I had several cases where I provided testimony 2-3 years ago for 40B projects. I am usually called to defend the civil engineering design for the project.

What issues typically come up?

For me personally, about 50% [of the issues in litigation] are related to drainage or wetlands impacts. For civil engineers in general, I'd say [the issues are] either public safety and roadway design, stormwater design, how [the project impacts] abutters and whether on or off-site facilities are adequate. Of course, our designs are always closely scrutinized for compliance with local and state regulations.

5. Let's say a developer is planning to build a new subdivision. At what stage is it best to engage your firm?

Early on in the process. We would perform due diligence, a feasibility study, and maybe do some conceptual planning. It typically takes us about 30 days to complete conceptual planning, which depends on the size of the land, type of alternatives available for development of the site, etc.

6. When thinking about some of your past projects, what exactly makes a project "complex"? Would it be the size? Challenges of complying with existing laws? Physical features that must be overcome on the site? Mitigation requirements?

It could be a combination of things. The larger the parcel, the density of development, the more restrictive the zoning (i.e. are special permits, variances needed?), wetlands permitting constraints, endangered species issues, state registered archeological or historical sites. Larger projects also require permitting under MEPA which can be quite involved. Generally, when we're also working under a zoning bylaw that allows more flexibility, there is lot more thought that goes into [the planning of the project] and more creativity and coordination with client in the initial planning phases because it's not a standard "cookie cutter" project.

(Answers provided by Shane L. Brenner, PLS)

1. Tell me what your specific role is at a firm like McKenzie Engineering Group. What kinds of things are you doing on a day -to-day basis?

I am the director of land surveying and am in responsible charge of all land surveying work that is performed at our firm. I direct our surveyor's daily activities-I'll ask questions as to what they've looked at, explain (procedurally) how I expect work to be done, [ensure] accuracy standards. Being registered [under Massachusetts General Laws], the regulations that guide us [provide] that the PLS must scrutinize all work performed.

I work hand in hand with engineers and clients to make sure the clients' land surveying needs are addressed, and that the integrity of the work meets a high standard. I may work on a project independently of the engineers, but that is less common because there is usually an engineering component to a majority of our projects. I also work on the construction side performing survey layout of proposed buildings or proposed infrastructure.

Overall, I perform a broad range of functions here. I prepare very comprehensive plans, prepare proposals, perform title research, training subordinate employees, perform property line calculations, analyze various types of evidence to base decisions on (like reviewing measurements, interpreting deeds, plans and other record documents and make comparative analysis to resolve ambiguity). I specialize in preparing difficult existing conditions base plans and title insurance plans. These plans are used to flush out project site constraints or identify encumbrances that may adversely impact development.

2. There seem to be different kinds of land surveyors-such as PLS, PS, LS and RLS-what are the differences, exactly?

Each individual state has their own terminology and set of requirements (to become registered) for a registered or licensed land surveyor. For example, in NH, it's licensed land surveyor. In MA, it's a registered professional land surveyor. They have the same meaning - just different titles depending on the state. But, a land surveyor [without any other designation or qualifier] is not recognized to the level of being registered with a specific state, and haven't gone through the process of getting registered. All states require that a non-registered land surveyor work under the responsible charge of a registrant.

3. There also appears to be different kinds of surveys that can be performed. What are some of your more typical surveys that you do?

Generally speaking, there are boundary surveys (property line surveys), topographic and detail surveys, land title surveys for title insurance (identifying encumbrances), land court surveys, condominium surveys, elevation certificates for FEMA, and GPS control surveys.

A lot of these types of surveys are used in conjunction with one another. A base plan would identify accurate property lines, easements, topographic and detail features and wetland resource areas. So the plans will have a vertical component to show contours, will show horizontal/linear features like buildings, parking areas, utilities, etc... It really depends on what I am asked for. The surveys can also have different accuracy standards assigned to them. For example, a developer may not want to spend the money to define accurate property lines on a project until they have a better understand of how the other site constraints impact a project and address the property line component at a later date.

4. I'm curious about the interplay between having to sometimes rely on particularly old deed descriptions (especially considering we're in Massachusetts) and the kinds of exacting technology available to surveyors today. I would expect that there are sometimes discrepancies or ambiguities in descriptions and what you see on the ground (i.e. previous marks), resulting in lot lines being not where people thought they were. How does a surveyor reconcile that?

That's the intriguing part of my job that I really enjoy. Looking at the old record documentation and using cutting edge technology to make a comparative analysis. Over time, the instrumentation and ability to be more precise has increased and will continue to do so. But, as a surveyor, if you're trying to reproduce an original surveyor's work (a retracement survey) you're trained to follow in the footsteps of the original surveyor, and your end goal is to match the original intent of the original conveyance. It is important to understand that the parties involved in the original conveyance create the property lines and not the land surveyor. The original surveyor's job is to create record documents and set monuments that will stand the test of time.

Some surveyors get hung up on accuracy component, that they lose sight of the fact that you're really trying to reproduce what the original surveyor did, with likely much less accurate equipment. So there are rules of construction in deed interpretation, and a hierarchy to help reconcile the property lines correctly. But you're trying to obtain as much evidence as you can to make an intelligent opinion about where you think the property lines belong, which can be hard if evidence is difficult to recover, the monuments are disturbed or are no longer there.

If the undisturbed record monuments (i.e. stone bounds, iron pipes drill holes in stone walls, etc.) can be found and located, the record measurements will yield to the monument location. The new measurements between the monuments can be calculated and used to better define the monument's location in perpetuity. This is not to suggest that the record measurements where bad as they may have been derived for the best possible methods and equipment available in the era that the measurements where performed.

5. What kinds of trends can we expect over the next 10 years or so in the world of land surveying?

There will be a change in the technology and the way we measure things. Thirty years ago we didn't measure with GPS, and now we are. With every advance in technology we can yield different results in surveying. In turn, the regulations will require a higher standard to meet. I see different challenges ahead - increased accuracy standards and tolerances, but still [having to work] with old record documentation. We'll probably also see changes that will limit survey work in some areas [by surveyors] - some contractors are doing their own survey work with the [increased availability of technology.]

Bradley C. McKenzie, P.E., has over 28 years of experience in the permitting of many different types of land development projects throughout Massachusetts. Shane L. Brenner, PLS, has over 20 years of experience in land surveying. To learn more about McKenzie Engineering Group, Inc., please visit their website at www.mckeng.com or call them at (781) 792-3900 (Norwell) or (978) 777-8177 (Danvers).

Written by Kristen M. Ploetz, Esq., of Green Lodestar Communications & Consulting, LLC, on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.

Copyright (c) 2011-2012 by Jeffrey T. Angley, P.C. All rights reserved.

Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.

No Comments

Leave a comment
Comment Information