November 23, 2020

Volume X, Number 328

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November 20, 2020

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COVID-19: Massachusetts Governor Baker’s March 23, 2020 Order

Update: We have learned that effective March 16, 2020, MassDevelopment implemented modified work rules to prevent and mitigate the spread of coronavirus. MassDevelopment employees are now working remotely to continue the numerous programs and projects we perform to support economic development across the Commonwealth

On March 23, 2020, Massachusetts Governor Charlie Baker issued an “Essential Services and Revised Gatherings Order,” further limiting the movement and congregation of people in response to the coronavirus pandemic, or COVID-19. The order is not an across-the-board “shelter in place” order; it is designed to leave critical parts of the Commonwealth’s government and business community operational. Nonetheless, the question of how to continue real estate development activities just got more complicated. Government policies are changing quickly, and the documents linked below will presumably be updated by the agencies responsible for them. The governor’s March 23 order, linked here, primarily impacts business operations. It is important to note that this order only requires non-essential businesses to close their brick-and-mortar operations. It should not impact any business that doesn’t need workers to physically appear in a building.

Construction

As many developers know, municipalities in Massachusetts have been shutting down construction. Boston and Cambridge have imposed limits on construction activity (click on each city name to see their respective orders).There is now an apparent contradiction between these orders and the governor’s March 23 order. Exhibit A to that order, linked here, lists all exempt businesses and organizations as “COVID-19 Essential Services.” The order specifically exempts construction (including home construction) from its reach. For properties in municipalities with no limitations, construction can proceed (though scheduling necessary inspections may be difficult). For properties in municipalities that have imposed limitations, it’s unclear what effect the governor’s order has. Massachusetts is a Home Rule state, granting municipal governments wide latitude to make their own rules about what is allowed within their borders. We expect this apparent contradiction to be clarified soon and will provide an update when that happens.

State and Local Government

It appears that many government agencies are still operating, albeit remotely, and that the governor’s March 17, 2020 order regarding Executive Branch Agencies, which identified the agencies that are still operating and listed those that the public can still access, remains in effect. Exhibit A to that order states that “critical” government workers “as defined by the employer and consistent with Continuity of Operations Plans” are expected to report to work. This includes building inspectors and other building safety officials.

While, as noted above, the governor’s orders may have limited impact on municipalities because of Home Rule, his March 23 order does apply to quasi-governmental organizations such as MassHousing (apparently still operating, see here) and MassDevelopment (unclear if it is still operating). On the municipal side, the Boston Planning and Development Agency website presently states that its staff is continuing to work remotely; a link to that page is here.

It should be noted that under the governor’s March 23 order, groups of no more than 10 individuals are allowed to congregate (down from 25), and that this lower number applies to any public meetings.

Many city and town halls are now closed and have been closed to all but certain employees for over a week. The Massachusetts Legislature is considering a bill that would relieve municipalities of statutory permitting obligations imposed on local boards and statutory deadlines regarding the annual Town Meeting. A link to that bill is here. Another, more extensive bill addressing the obligations of municipal permitting authorities during the state of emergency was filed by the governor on March 24. A link to that that bill is here. Should either bill pass, it is likely that local government activity will be even more limited in the coming weeks.

Real Estate Transactions     

The governor’s March 23 order certainly doesn’t make real estate transactions any easier. It is not clear if this order will have any impact on Registries of Deeds, some of which are shut down completely while others are still operating but are closed to public access. The Massachusetts Real Estate Bar Association (REBA) has been keeping a running list of which registries are open; that list is linked here. The governor did, in a March 20, 2020 order (linked here), suspend smoke and carbon monoxide detector inspections so that transactions could proceed. However, the process of showing properties for sale or lease has been increasingly complicated by the coronavirus pandemic, and the March 23 order makes closings more difficult by requiring that most office buildings across the Commonwealth be closed.

 

©2020 Pierce Atwood LLP. All rights reserved.National Law Review, Volume X, Number 87
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Paula M. Devereaux Partner Boston Commercial Real Estate Law Real Estate Land Use Environmental
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Paula Devereaux is an experienced commercial real estate and land use attorney, focusing her practice on development, zoning, permitting, planning, and environmental regulatory compliance. Paula serves as real estate counsel for a number of clients in the Greater Boston area, ranging from smaller organizations to large corporations, medical centers, retailers, and real estate firms. She regularly advises clients on Boston permitting matters, waterfront development issues, and in sales, acquisitions, and financings.

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Donald R. Pinto, Jr., Pierce Atwood, litigation lawyer
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Don Pinto has more than 30 years of experience as a civil litigator, with a focus on complex real estate and land use disputes. He handles cases at the trial and appellate levels in the state and federal courts and before administrative agencies. Outside the courtroom Don has successfully resolved many disputes through negotiation, mediation, and arbitration.

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Joel Quick Real Estate Attorney Pierce Atwood
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Dan Bailey environmental, land use, real estate, and municipal law.
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Gareth Orsmond Partner  real estate, land use, environmental and municipal law, real estate financing, affordable housing
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Gareth Orsmond is a real estate lawyer with expertise in land use, environmental and municipal law, real estate financing, affordable housing, and large-scale development. Gareth’s practice encompasses commercial transactions, permitting, resolving property disputes, providing general counsel on a wide range of subjects, and litigating matters in administrative tribunals and court.

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