On April 3, 2020, Governor Baker signed the “Act to Address Challenges Faced by Municipalities and State Authorities Resulting from COVID-19” (the “Act”). The Act addresses the effect of the Governor’s March 10, 2020 Declaration of a State of Emergency on a number areas of commercial and municipal life, including the conduct of annual and special meetings of public and charitable corporations, the Open Meeting Law, the collection of state and local taxes, Chapter 61 land and the administration of state and local permitting. The provisions of the Act that concern state and local permitting are of particular importance to our clients involved in development projects. To that end, this summary provides a brief overview of the key aspects of the Act’s effect on state and local permitting procedures.
- What the Act Applies To. The Act applies to any permit, special permit, variance, license, amendment, extension or other approval (“Permit”) issued by a local, district, county or regional office, or regional official or a local, district, county or regional multi-member body that is authorized to issue a permit (“Permit Granting Authority”).
- Acceptance of Filing. Permit applications will be deemed filed and accepted as of the date of filing by the applicant if filed with and received by the city or town clerk (or with the secretary or other official, as appropriate) (note, however, that not all cities and towns are accepting applications at this time so it is necessary to check with the municipality for its policy).
- Electronic Filing. Permits applications may be filed electronically via email to the appropriate official (i.e., clerk, secretary or other official) or via the electronic submission website established by the relevant authority. Certification of receipt of the application by the appropriate authority can also be done electronically (note that not all municipalities have electronic filing capability).
- Scheduling of Public Hearings. As of March 10, 2020, the requirement that a public hearing be held within a certain amount of time after the filing of an application is suspended and will not resume until 45 days after the termination of the state of emergency.
- Remote Hearings. For the duration of the state of emergency, Permit Granting Authorities may conduct meetings and public hearings remotely.
- Tolling of Expiration Dates and Deadlines of Existing Permits. The expiration date of any Permit that was in existence as of March 10, 2020, along with any time period for meeting a deadline or for the performance of a condition, is tolled during the state of emergency.
- Constructive Approval or Denial. No Permit will be deemed constructively approved or denied as a result of the failure of the Permit Granting Authority to act on the Permit. The Act requires, however, that the Permit Granting Authority act on the Permit within 45 days of the termination of the state of emergency.
- Authority Permit Granting Authority’s Chair to Reschedule Hearings. The Chair of the Permit Granting Authority may unilaterally schedule or reschedule the hearing or decision deadlines of a Permit application. Such date or deadline cannot be scheduled more than 45 days after the termination of the state of emergency.
- Permits Required to be Recorded. For Permits that are required to be recorded with the Registry of Deeds or Land Court, the deadline for such recording has been suspended for as long as the appropriate Registry of Deeds or Land Court is closed or subject to rules restricting public in-person access. Failure to record a Permit during this period will not preclude the Permit-holder from applying for, obtaining and commencing construction under other permits and approvals, such as a building permit.
- Hearings Opened Before March 10, 2020. Any hearing before a Permit Granting Authority regarding a Permit that opened before March 10, 2020, and did not conclude as of March 10, 2020, is automatically tolled and continued to the first hearing date of the Permit Granting Authority that is not later than 45 days after the termination the state of emergency.
- Revocation and Modification of Permits. The Act proscribes the Permit Granting Authority from revoking or modifying permits where such revocation or modification is a result of: i) the Permit-holder’s failure to exercise the Permit by commencing work under the Permit; or ii) the Permit-holder’s cessation of work under the permit before March 10, 2020, as a result of the state of emergency. This limitation is in effect for the duration of the state of emergency and for an additional 60-day period following its termination. The Permit-holder may apply to the Permit Granting Authority for a reasonable extension beyond the 60-day period for good cause.
- Status of Existing Permit Applications. The Act specifically states that it does not preclude any Permit Granting Authority from issuing decisions on Permit applications where the hearings or meetings on such applications have already been held. Furthermore, the Act does not preclude any building official from issuing permits, including a building or demolition permit, in connection with Permit applications approved by the Permit Granting Authority.