March 27, 2020

Massachusetts Governor Files Bill to Ease Local Permitting During State of Emergency

Action Aims to Provide Temporary Relief/Clarification of Procedural Rules and Deadlines Affecting Permits During COVID-19 Outbreak
Holland & Knight Alert
Frank Stearns

This Holland & Knight alert summarizes Massachusetts Gov. Charlie Baker's proposal to the Legislature to guide cities, towns and local permit applicants during the current coronavirus (COVID-19) state of emergency.

On March 24, 2020, the governor filed "An Act to Further Address Challenges Faced by Municipalities, School Districts and State Authorities Resulting from COVID-19," or, for now, House No. 4586 (Bill). Section 9 of the Bill is specifically for local permit procedures.

House No. 4586 is Different in Key Respects to the Permit Extension Act that Massachusetts Adopted in the Wake of the 2008-2009 Financial Crisis

In response to the economic effects of the 2008-2009 financial crisis, the Massachusetts legislature passed "The Permit Extension Act" (Act). (See§ 173 of "An Act Relative to Economic Development Reorganization", (2010)). The Act created a "tolling period" for permits in effect or existence during set times of the 2008 financial crisis. This COVID-19 state of emergency bill, however, is more akin to a short term "truce" between local permitting authorities and applicants that are in the midst of practicing social distancing and not conducting public hearings in person.

Hitting the "Pause Button": Tolling Public Hearings, Permit Expiration Dates and Required Recordings

The Bill essentially hits the "pause button" on certain aspects of local permitting processes, including zoning, Wetlands Protection Act, Subdivision Control, Historic District regulation, and other locally issued permits and approvals. Requirements, such as, for example, "that a hearing commence within a specified period of time after the filing of an application" have been suspended through the duration of the state of emergency, and for at least 45 days thereafter. (See§ 9(b)(2)). Moreover, expiration dates for permits in effect as of March 10, 2020, (including deadlines or conditions of a permit) are tolled until the state of emergency has been lifted. (See § 9(b)(3)).

In the event a permit is required to be recorded, the Bill suspends the applicable period of time for such recording. (See § 9(b)(6)). The suspension will remain in effect so long as the "relevant registry of deeds or registry district of the land court is either closed," or until in-person access to such facility has been restored. (See Id.). Notably, "the failure to record [a] permit [will] not preclude [a] permit holder from applying for, obtaining and commencing construction activities pursuant to other required permits and approvals . . ." (See Id.).

House No. 4586 Will Allow Electronic Filing of Applications

Since most local permitting offices are closed to the public, the Bill provides alternatives to in-person permit filing, allowing applicants to file permit applications electronically. Applications can be submitted "either through an electronic submission website established by the permit granting authority, or through attachment of the requisite forms and supplemental materials to electronic mail sent to the [applicable] clerk, secretary, or official." (See§ 9(b)(1)). The application will be "deemed duly filed and accepted as of the date of the filing by the applicant, if filed with and certified as received by the city or town clerk if a municipality, or with the secretary or other official established by law to receive such applications if a county or regional entity." (See Id.).

DISCLAIMER — House No. 4586 is Not Law

Gov. Baker filed the Bill with the legislature on March 24, 2020, and it is currently under review in the House. Importantly, this means the Bill is not law (yet).

Executive Order: COVID-19 Order No. 17.

For state permits, Gov. Baker issued an executive order on March 26, 2020, titled "Order Suspending State Permitting Deadlines and Extending the Validity of State Permits" (Order). (SeeCOVID-19 Order No. 17). As its name suggests, the Order suspends 1) "[a]ny requirement that a hearing commence within a specific period of time after the filing of or appeal of a decision on an application" for an approval; and 2) "[a]ny requirement that a state permitting agency" must issue a decision on an application or appeal of an approval. (See Id. at (b) and (d)). Further, permit expirations and deadlines for performance of conditions thereof have been tolled. (See Id. at (e)). The suspension in each instance will last for the duration of the state of emergency, with the running of the applicable time period to resume 45 days thereafter. (See Id.).

For more information on the Bill and its impact during the COVID-19 state of emergency, contact the authors.

DISCLAIMER: Please note that the situation surrounding COVID-19 is evolving and that the subject matter discussed in these publications may change on a daily basis. Please contact the author or your responsible Holland & Knight lawyer for timely advice.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.

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