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Volume X, Number 331

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Real Estate Development in the Time of Coronavirus: Massachusetts – Update 10/19/2020

New Guidance on Public Hearings on Housing Proposals

The Massachusetts Department of Housing & Community Development (DHCD) recently issued guidance for municipalities regarding housing development. This guidance relates to a municipal relief act passed in April (Chapter 53 of the Acts of 2020). Chapter 53 stayed all statutory deadlines requiring municipal boards and commissions to act on development applications for the duration of the COVID-19 state of emergency.

Normally, if an application is not acted on within statutory time frames, the result may be constructive approval of permits. The DHCD guidance notes that Massachusetts Governor Charlie Baker greatly loosened open meeting law requirements during the state of emergency by executive order, allowing public boards and commissions to meet remotely by video or by telephone (this order is incorporated into Chapter 53).   

The DHCD Guidance addresses two problems. First, some municipalities resumed public meetings remotely right away, others waited months, and some have held no public meetings since March. The result is a loss of predictability in an industry that requires it for financing and construction schedules. Second, there has been inconsistent treatment of development applications based, in part, on public interest in a project. Concerns about such inconsistent treatment undoubtedly played a role in the establishment of statutory deadlines for closing hearings in the first place.

While the DHCD guidance is not binding, it is helpful to understand the position of this agency with a hand in housing production and affordable housing management across the Commonwealth. DCHD urges municipalities to hold remote hearings on housing development applications if possible. The guidance also reminds municipalities that Chapter 53 does not allow inconsistent treatment of applications, and that picking and choosing which applications to hear may violate state and federal fair housing laws.

Massachusetts Eviction Moratorium Expires

The Commonwealth’s moratorium on residential evictions, certain residential foreclosures, and certain commercial evictions (Chapter 65 of the Acts of 2020) expired on October 17, 2020. While some Massachusetts municipalities have passed local eviction moratoriums, it is currently unclear how Massachusetts courts will handle eviction filings.

The federal eviction moratorium issued by the Centers for Disease Control and Prevention (CDC) is facing multiple court challenges, but as of this writing has not been struck down. This moratorium expires by its own terms at the end of 2020. Unlike the now-expired state moratorium, the CDC moratorium does not impact commercial properties or foreclosures, and it places the onus on tenants to qualify and landlords to comply.

©2020 Pierce Atwood LLP. All rights reserved.National Law Review, Volume X, Number 293
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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
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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.

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

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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.

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
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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.

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
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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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