COVID-19: Massachusetts Municipal Permitting Update
On November 10, 2020, Governor Charlie Baker signed legislation that now requires most municipal boards and commissions to move forward on permit applications by December 1, 2020 unless the secretary of housing and economic development grants them more time to act. In April 2020, the rules regarding municipal permits in Massachusetts were changed by the legislature in response to the COVID-19 pandemic. See Section 17 of Chapter 53 of the Acts of 2020 (“Chapter 53”). This section of Chapter 53 was amended recently when the governor signed Chapter 201 of the Acts of 2020 (“Chapter 201”). The amendments to Chapter 53 can be found in Sections 33 through 38 of Chapter 201.
The changes in Chapter 201 reflect the fact that the duration and extent of the pandemic were unknown in April. Many of the time frames in Chapter 53 were tied to the end of the state of emergency declared by Governor Baker. Several months later, as COVID-19 continues to spread nationwide, it is clear that the state of emergency is unlikely to end soon. Section 17(d) of Chapter 53 recognizes that local boards and commissions can now hold meetings remotely under the governor’s order modifying the open meeting law. With the changes in Section 201, that option has become something closer to a mandate. Section 38 of Chapter 201 provides that the secretary of housing and economic development can grant relief from permit hearing deadlines if neither a remote hearing nor an in-person hearing is possible prior to the new deadlines.
Under the changes in Chapter 201, municipal boards are to commence a hearing on any permit application by December 1, 2020 or within the statutorily set time frame (Section 33). The time for boards and commissions to act on applications to avoid constructive approval is now tolled only until December 1, 2020 (Section 34). A board may not reschedule any hearing or decision deadlines beyond December 1, 2020 without leave of the secretary of housing and economic development (Section 35). Any hearings opened before March 10, 2020 cannot be continued to a further hearing date beyond December 1, 2020 without leave of the secretary of housing and economic development (Section 36).
Section 37 of Chapter 201 changes the time in which a board can revoke or modify a permit. It is unclear what the full effect of this change will be. Originally Chapter 53 allowed boards to modify or revoke permits, but denied them the ability to do so “where the permit holder fails as a result of the state of emergency to exercise or otherwise commence work pursuant to the permit.” Chapter 201 lifts this limitation on a board’s powers as of December 1, 2020. However, a still-unchanged section of Chapter 53 states: “[A] permit in effect or existence as of March 10, 2020, including any deadlines or conditions of the permit, shall not lapse or otherwise expire and the expiration date of the permit, or time period for meeting a deadline or for performance of a condition of the permit, shall toll during the state of emergency.” It is unclear if these subsections continue to operate harmoniously. In particular, it is unclear what the result will be if a board tries to revoke a permit because work has not commenced in a timely manner where the statute says that any deadline to act under a permit is tolled for the duration of the state of emergency.