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Volume XI, Number 212

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Real Estate Permitting Update: Massachusetts – 5/19/21

On May 17, 2021, Massachusetts Governor Charlie Baker announced that the state of emergency declared on March 10, 2020 will likely end on June 15, 2021. Both state and local permits were extended while the state of emergency has been in effect. Those tolling provisions would expire on June 15, 2021.

Open meeting law changes allowing boards and commissions to meet remotely would also expire on June 15, 2021. The Massachusetts Legislature is considering separate bills that would extend the time that certain permits are in effect and amend the open meeting law to allow for more remote participation. Whether these bills will become law remains uncertain. 

Local Permits

The Massachusetts Legislature extended local permits and permit deadlines in response to the COVID-19 pandemic in Section 17(b)(iii) of Chapter 53 of the Acts of 2020 Under this law, any permit “in effect or existence as of March 10, 2020,” and any permit deadlines were tolled during the state of emergency. This section of Chapter 53 was unchanged by later amendments.

The definition of “permit” in Chapter 53, Section 17(a) includes any “approval issued by a permit granting authority pursuant to a statute, ordinance, bylaw, rule or regulation, whether ministerial or discretionary.” The general understanding is that the duration of the state of emergency – the time from March 10, 2020 to (presumably) June 15, 2021 – is added to permits and permit deadlines if permits were valid on March 10, 2020 or issued after March 10, 2020. For permits issued before March 10, 2020, the time remaining to act begins to run again when the state of emergency ends.

State Permits

Governor Baker issued Order No. 42 on July 2, 2020 This order relied on the governor’s special authority during the state of emergency and will expire when the state of emergency ends. It covers permits issued by “a state permitting agency.” Section 3 of the order tolled the time that permits are in effect for the duration of the state of emergency. Critically, with one exception, the order did not itself toll deadlines in permits, but rather allowed state agencies discretion to extend deadlines.

The exception to the rule regarding deadlines is that the time to record a permit was tolled during the state of emergency, which has particular relevance for Chapter 91 licenses that must be recorded within 60 days. This order clearly explains that the time left before any permit lapsed as of March 10, 2020 will be the time remaining as of June 15, 2021.

Open Meeting Law

Governor Baker issued Order No. 1 on March 10, 2020 suspending certain provisions of the Open Meeting Law. This order has allowed public meetings to occur remotely, with remote participation by members of the public. This order will expire with the state of emergency on June 15, 2021. This is likely to cause significant disruption to the regular operations of municipalities across Massachusetts. With a return to compliance with open meeting rules, delays in obtaining permits can be expected. Capacity limits, social distancing, and mask requirements are likely over the next few months as public bodies return to in-person meetings.

©2021 Pierce Atwood LLP. All rights reserved.National Law Review, Volume XI, Number 139
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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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