Massachusetts Passes Local Permitting Relief For COVID-19 Emergency

On April 3, 2020, Massachusetts Governor Charlie Baker signed into law Chapter 53 of the Acts of 2020, an Act To Address Challenges Faced by Municipalities and State Authorities Resulting from COVID-19. Click here for a link to the Act. The Act adopts measures to help municipalities operate during the state of emergency that the governor declared on March 10, 2020. Some measures primarily serve the municipalities’ needs, while others aim to prevent economic development from cratering while municipalities focus on critical public health matters. Sections 17-18 of the Act serve both purposes by addressing local permitting. The following is a summary of the local permitting provisions:

• Permits Defined: The Act broadly defines “permit” to include permits, variances, special permits, licenses, amendments, extensions, and “other approvals” issued by local, district, county, or regional officials or multi-member bodies. Not mentioned are determinations or decisions that may not ordinarily be considered approvals, such as determinations of applicability by conservation commissions under local wetlands protection bylaws and ordinances. We expect municipalities and courts to construe “permits” broadly, as they did for the 2010 Permit Extension Act. 
• Applications: During the state of emergency, an application is deemed accepted as of the date of filing if it is filed with, and certified as received by, the municipal clerk or, for county or regional entities, the official established by law to receive applications. Applications may be filed electronically through a web portal or attached to an email; at the applicant’s request, the municipal clerk or county or regional official must certify receipt electronically.

These measures serve two purposes. First, they suspend statutory and regulatory formalities, such as the filing requirements of M.G.L. c. 40A, § 9 (which requires special permit applications to be filed with a municipal clerk and a copy with the date and time of filing to be certified by the clerk and then filed with the special permit-granting authority), and procedural regulations adopted by a permit-granting authority, which sometimes require several copies of full-size plans and other materials. Second, the measures prevent a municipal, county, or regional permit-granting authority from refusing to accept applications that it deems incomplete. Our recommendation is to file electronically first; then, as a courtesy, submit a complete paper application with the number of copies and sets of plans usually required. In some instances, an applicant should consider sending the materials by certified mail or an overnight delivery service that provides proof of delivery.

• Incomplete Applications: In a bit of a puzzler, the Act only allows a “permitting board” – presumably a reference to permit-granting authority (a defined term) – to contest an application’s completeness in two instances: (a) if the applicant appeals a decision, or (b) if the application is denied “on other grounds.” It is not clear what this provision means to achieve, how it will play out, and whether it will have much impact. Most applicants provide a permit-granting authority with the information necessary to obtain approval.

• Tolling: The Act “suspends” or “tolls” (the two terms appear to be interchangeable) several timelines.  Specifically, the Act tolls the following:

  • Any requirement that a hearing be commenced within a specified time after an application is filed. An example of a tolled timeline is the requirement in M.G.L. c. 40A, § 9, that a special permit-granting authority open a hearing within 65 days of the date on which an application is filed. Unless a later date is prescribed by law, the tolling or suspension lasts until 45 days after the state of emergency ends, at which time the clock starts again.
  • A hearing on a permit application that was opened before March 10, 2020 but not concluded by March 10. In this case, the Act continues the hearing to the first hearing date of the permit-granting authority after the state of emergency ends, but no later than 45 days after the state of emergency ends, unless a later date is prescribed by law. It is not clear what happens if a permit-granting authority fails to hold a hearing within 45 days after the state of emergency ends since the Act, itself, does not provide for a constructive grant. 
  • Any requirement that a permit be recorded with a registry of deeds or filed with a land court registry district to be deemed “exercised” or to remain in effect. This tolling period lasts as long as the relevant registry or land court district is closed or restricts public, in-person access. In addition, failure to record a permit does not preclude construction activities under “other required permits and approvals,” such as a building permit. For example, if a person obtains an order of conditions under the Wetlands Protection Act and a local wetlands protection ordinance and cannot record that order, but nonetheless obtains a building permit for the project approved by the order, then the Act appears to allow construction to proceed despite a condition in the order requiring the order to be recorded before work starts.
  • The Act does not address permit appeals, but on April 1, 2020, the Massachusetts Supreme Judicial Court ordered a stay of all appeal periods from March 16 through May 4, 2020. For an analysis of this order, see our April 2 alert titled, “Real Estate Development in the Time of Coronavirus.”
  • Constructive Grants Deconstructed: From March 10, 2020 to the later of (i) 45 days after the state of emergency ends or (ii) a date otherwise prescribed by law, no permit can be deemed constructively granted or denied. On the whole, this measure addresses provisions like M.G.L. c. 40A, § 9 (failure of a special permit-granting authority to take final action within 90 days of the hearing results in a constructive grant) and M.G.L. c. 41, § 81U (failure to take final action on a definitive subdivision application within 90 days of the hearing results in a constructive grant). Other scenarios are less clear.

The Act prohibits a permit from being considered granted or denied “constructively or otherwise.” Drafters typically use language such as “or otherwise” when they do not know the full repercussions of what they are drafting, and that is likely the case here. Possibly this language seeks to prevent a permit-granting authority from deeming an application automatically denied due to an applicant’s failure to submit requested materials during the emergency (and 45 days thereafter), and similar situations. Permit-granting authorities and applicants alike will have to exercise sound judgment about how to proceed given the imprecise language in the Act.

• Permits Extended: During the state of emergency, (a) a permit in effect or existing as of March 10, 2020 does not lapse or expire, and (b) the Act tolls any date by which the permit must be exercised or conditions (including deadlines) must be met. Unlike in other provisions, the Act does not provide a 45-day grace period after the state of emergency ends within which to exercise the permit or satisfy conditions not met during the emergency.

Where a permit holder fails to exercise the permit or commence work under the permit as a result of the state of emergency, or suspends work as a result of the state of emergency or actions taken by a state, regional, county or local agency in reliance on the state of the emergency, then, in addition to the automatic extension for 60 days after the state of emergency ends, the permit holder is “entitled” to a reasonable extension for good cause shown at the “discretion” of the permit-granting authority or its chair, acting without a quorum. Words such as “entitled” and “discretion” typically are not used together, so permit-granting authorities and permit holders should take a practical approach when relying on this provision.

• Relaxed Open Meeting Law Requirements: The Act relaxes open meeting law requirements in three ways. First, it adopts the governor’s March 12, 2020 order suspending certain provisions of the open meeting law, as this order may be amended or replaced, to allow meetings to be conducted remotely during the state of emergency. Second, it authorizes the chair of a permit-granting authority to act without a quorum to schedule or reschedule one or more hearing or decision deadlines for up to 45 days after (a) the date on which the state of emergency ends, or (b) a later date otherwise prescribed by law. Written notice of this action must be provided to the applicant and posted on the applicable municipal, county, or regional website. Third, the chair of a permit-granting authority, acting without a quorum, can extend the permit for a reasonable length of time for good cause shown when work was not commenced or was suspended as a result of the state of emergency.
• Not a Moratorium: The Act is not a moratorium on permitting. It does not preclude a permit-granting authority from deciding applications for which the necessary public meetings or hearings have been duly noticed and held (if required), nor does it preclude a building inspector or similar official from issuing building permits or demolition permits. It also does not preclude a permit-granting authority from revoking or modifying a permit after meeting any notice and hearing requirements, so long as, during the emergency and for a 60-day period after the state of emergency ends, the grounds for revocation or modification are not (a) failure to exercise the permit or start work under the permit as a result of the state of emergency, or (b) suspension of work as a result of the state of emergency or actions taken by a state, regional, county or local agency in reliance on the state of the emergency. 
• Federal Delegation: The Act does not purport to excuse or modify – and most likely cannot excuse or modify – any requirements necessary to retain federal delegation to the Commonwealth of authority to implement a federal law or program. Federal requirements find their way into state and local programs through various means, so this limitation requires careful attention and a good understanding of the permitting scheme at issue. For the most part, it is unlikely to affect zoning.

For questions or for more information about the Act providing local permitting relief in Massachusetts, please contact firm commercial real estate partner Gareth Orsmond, author of this alert, or Dan Bailey, Paula Devereaux, or Don Pinto.