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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.

©2021 Pierce Atwood LLP. All rights reserved.National Law Review, Volume X, Number 321
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About this Author

Dan Bailey environmental, land use, real estate, and municipal law.
Partner

Dan Bailey has more than 30 years of experience in environmental, land use, real estate, and municipal law. He prides himself on offering pragmatic solutions to complicated legal matters. While Dan’s “sweet spot” is the redevelopment of commercial property, he has a strong background in all aspects of environmental and regulatory law. Dan also handles all types of real estate transactions.  

Dan has helped facilitate development of a wide range of commercial real estate projects, ranging from mixed use (retail, office, and housing), multifamily housing, athletic facilities, marinas...

617-488-8165
Paula M. Devereaux Partner Boston Commercial Real Estate Law Real Estate Land Use Environmental
Partner

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.

Paula is active in the real estate community, serving in leadership...

617488-8186
Gareth Orsmond Partner  real estate, land use, environmental and municipal law, real estate financing, affordable housing
Partner

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.

For more than 20 years, Gareth has represented diverse clientele, including developers, non-profit organizations, and governmental agencies. He has handled hundreds of hearings and meetings with...

617-488-8181
Donald R. Pinto, Jr., Pierce Atwood, litigation lawyer
Partner

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.

Don is also the founder, editor, and one of several contributors to Massachusetts Dirt and Development Law, the firm's real estate blog.

...

(617) 488-8175
Joel Quick Real Estate Attorney Pierce Atwood
Associate

Joel Quick focuses his practice on land use and real estate law, providing a full array of legal services for any commercial or residential development project, including analyzing land use and local environmental regulations and appearing before public bodies to seek needed relief. Joel also negotiates and drafts any restrictions, easements, and covenants required by a municipality as a condition of approval, and, if needed, will seek amendment of affordability, conservation, and preservation restrictions. With experience acting as counsel for a number of municipalities and municipal...

617-488-8157
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