Real Estate Development in the Time of Coronavirus: Massachusetts - Update 4/2/2020
The abrupt halt to day-to-day operations over the last two weeks is forcing a series of unwelcome decisions on Massachusetts real estate developers. While many activities are sharply curtailed, including construction in Boston and other municipalities, local and state governments are continuing to operate in some capacity. Developers facing contractual deadlines may be compelled to do whatever they can to move forward. For others, this may be a good time for long-term planning and getting everything lined up for the day we can safely leave our homes again. Below is some information for those seeking permits, approvals, advice, and decisions from governments in Massachusetts. The list will be updated and expanded as changes in government operations happen. The linked webpages below will inevitably be updated by the government entities that manage them.
Like the other trial courts, the Land Court issued an order limiting operations to those that are most essential in order to slow the spread of the coronavirus. Trials are cancelled through April 17, 2020, and only emergency business will be heard or acted on. Examples of emergency business include: “temporary restraining orders, preliminary injunctions, and urgent requests for judicial endorsement of memoranda of lis pendens.” All deadlines set by court order, tracking order, or the rules of civil procedure are now extended to April 6, 2020 and may be extended further. A link to the order containing court personnel contact information should you have questions is here, and the notice officially putting into place emergency measures is here.
Boston Planning and Development Authority
The Boston Planning and Development Authority has suspended all meetings and processes requiring public participation. A link to the webpage is here. The BPDA is presently continuing to hold Board meetings, Zoning Commission meetings, and Civic Design Commission meetings, but only on matters that do not require public participation. The statewide rule against gatherings of more than 25 people applies to public meetings. Some BPDA proceedings can be viewed remotely here.
Local Permitting Boards
It appears that deadlines designed to move matters quickly through local boards have been suspended by an order from the Supreme Judicial Court. The order, issued March 17, 2020 and designed to limit in-person appearances in court, has the following language: “Unless otherwise ordered by the applicable court, all deadlines set forth in statutes or court rules, standing orders, or guidelines that would otherwise expire before April 21, 2020, are extended to that date.” A link to the order is here. The broadest reading of this language would include statutory deadlines for local boards that would otherwise result in constructive approvals. The proposed Town Meeting legislation discussed below also has language that would to extend all deadlines for local boards.
On March 12, 2020 the Governor issued an Executive Order reworking the Open Meeting Law, which is linked here. Under the order, neither the chair nor a quorum of any public body needs to be physically present, and the requirement that the public be able to physically access the meeting is suspended. The order retains the requirement that relevant individuals be able to participate in the meeting, but allows this by remote means.
It will be important to work closely with municipal staff and/or board chairs to assure that all materials are disseminated to the board ahead of time. It is also important to carefully think through technical limitations. For example, under the Governor’s order a public hearing could consist of board members, each holding a stack of paperwork sent to their homes by staff, on a conference call with you, your development team, and any neighbors. Last minute plan changes and slide presentations could be unworkable, and any video feed may be no more than a screen showing the page of the materials under discussion.
Municipalities are taking varying approaches to the coronavirus outbreak, including closing public buildings and sending staff home. On March 17, 2020 the Massachusetts Office of Public Safety and Inspections issued guidance for building inspectors. The guidance is not presently linked online, but the paragraph relevant to inspection obligations under the code is copied below.
For situations involving building inspections for purposes of achieving compliance with the state building code, Sections 110.3, R110.3, “the building official shall make the inspections within two business days after notification.” Should an inspector be dealing with restrictions from their employer, which impedes completing inspections as prescribed in the code, or have situations involving the property or other risky conditions related to COVID-19, the state building code does provide an alternative. The inspector has the authority to accept reports from an approved subject matter expert per building code sections 104.4 and R104.4. Utilizing subject matter experts, and the appropriateness as to the use of these provisions, in any situation, is at the inspector’s discretion.
It will be important to work closely with any building inspector to see if you can submit a report in lieu of obtaining an inspection, should you need to do so.
Town Meetings and Local Elections
Town meetings and local elections are currently being postponed across the Commonwealth and, with them, bylaw changes, land deals, and appropriations that were on the warrant. The Governor filed a bill that would allow municipalities to take certain actions regarding Town Meeting while under a State of Emergency for public health reasons. A link to the bill page is here. The proposed legislation allows reductions in quorum requirements by vote of the town’s Select Board and an extension of the June 30 deadline for holding the annual town meeting. The bill also extends all local board deadlines and extends all permits and deadlines for those applying to boards for 45 days after the current declared state of emergency is lifted. The bill does not include relief related to local elections. Postponed elections could soon result in board vacancies that largely preclude a supermajority vote needed for special permits and other relief. It is unclear if the legislature will provide any relief, such as allowing existing board members to continue their terms regardless of local or charter rules.
Division of Administrative Law Appeals
The Division of Administrative Law Appeals has cancelled all in-person proceedings. A link to the website is here. Instead, the parties to an appeal will be given instructions on how to participate remotely. DALA also encourages parties to submit all filings by fax or mail.
Massachusetts Environmental Policy Act Office
The Massachusetts Environmental Policy Act office has an interim procedure that will carry until April 3, 2020. A link to the relevant webpage is here. Pre-filing meetings and requests for advisory opinions can be sought by emailing MEPA@mass.gov, but any pre-filing meetings will be held remotely. Electronic submittals sent to that same email address by 5:00 p.m. on the submittal date will be published in the Environmental Monitor, provided they are complete. When using a file sharing system for submittals, the link must be one that can be shared with other agencies. MEPA still requires that a paper copy of all materials be sent to the MEPA office and distribution list, but this copy is to be mailed and not delivered. Site visits will be limited to large projects or those “garnering public attention.” Public comments are to be submitted through the public comments portal.
As the crisis continues to unfold, state and local governments are continuously revising their emergency regulations and procedures.
Real Estate Development in the Time of Coronavirus: Massachusetts – Update 3/31/2020
SUFFOLK COUNTY REGISTRY OF DEEDS
Staff at the Suffolk County Registry of Deeds is currently unable to review and record mailed documents, per this notice posted on the registry’s website. The Edward Brooke Courthouse, where the registry is located, is closed for cleaning through April 3, 2020, so no registry staff will be in the building until April 6 at the earliest. While registry staff working from home will continue to record electronically filed documents concerning unregistered land, no action will be taken on registered land documents until staff returns. The Edward Brooke Courthouse will remain closed to the public until at least April 6, 2020, a date that could be extended further.
MASSACHUSETTS COURTS ALLOW EMAIL SERVICE
On March 30, 2020, the Supreme Judicial Court issued an order allowing parties to serve documents by email. Coronavirus aside, this is a development many attorneys have been hoping for to make providing legal services more efficient and cost-effective. The order recognizes that most attorneys are not going to their offices and are unlikely to receive mail on a daily basis. Under this new order, any attorney of record can be served by email, and each attorney appearing in a case must provide a working email address. Affidavits can be signed electronically if necessary, but attorneys must later obtain an original signed affidavit. While service is complete upon sending the email, when the service triggers a deadline for responding, the three-day extension for mailed documents typically provided in court rules is retained. The SJC’s order will remain in effect until further order of the court.
Real Estate Development in the Time of Coronavirus: Massachusetts – Update 4/2/2020
New Supreme Judicial Court Order Clarifies Impact on Statutory Appeal Periods
On April 1, 2020, the Massachusetts Supreme Judicial Court issued a new order that will go into effect on April 6, 2020. The order states that all Massachusetts courts will remain closed for all matters other than emergencies, as defined by each lower court, until May 4, 2020. A link to the order is here. The order restates that all statutes of limitations are tolled due to court closures, and, in paragraph 12, clarifies the rule regarding statutory appeal deadlines. The order states that all statutory appeal periods were stayed as of March 16, 2020 and will begin to run again on May 4, 2020 or when the order is lifted.
The language of the order is particularly helpful to those hoping to record land use permits once the appeal period has passed. If there was only one day left on an appeal period in March, the permit holder will only need to wait one day after the courts reopen to get the municipal clerk’s signature. The rule also clarifies that court-ordered deadlines and injunction time frames are extended until at least until May 4, 2020.
For example: a property owner has a variance that was filed with the town clerk on March 13, 2020. The 20-day appeal period would ordinarily expire on April 2, 2020. Two days of the appeal period expired before March 16, so the “new” appeal period will expire 18 days after May 4, 2020 or when the order is lifted.
Land Court Issues New Order
The Land Court is now closed to the public and all court personnel until April 9, 2020. A link to today’s order closing the court, which includes contact information should you need to reach court personnel working remotely, is here. The Land Court also issued a new order in response to the Supreme Judicial Court order of April 1, 2020, which is linked here and will go into effect when the court reopens. The new Land Court order in paragraph V makes it clear that statutory deadlines (such as the 20-day filing deadline for zoning appeals) do not create an emergency that the court must act on. The list of emergency matters is generally limited to injunctions, temporary restraining orders, and endorsements of memoranda of lis pendens that cannot wait. All other matters are stayed until at least May 4, 2020 (this includes Servicemembers Civil Relief Act cases and tax lien cases, as recently clarified by the court). Even for emergency matters, appearance in court is limited to extreme circumstances. All emergency matters are typically to be heard by telephone.