April 13, 2020
Developers Breathe Easy as Commonwealth Eases Permitting Deadlines During State of Emergency; Local Boards Brace for Impact
By Christopher K. Sweeney
On Monday, March 9, we dusted off the weekend cobwebs, packed ourselves into commuter trains and buses, and headed to work or school like we always do. Most of us viewed COVID-19 as a distant public-health aberration, just the latest infectious disease with a scary-sounding name that would largely fizzle out before reaching our shores. So we went about our business, unaware that within the span of a week, all but our most essential businesses and government offices would abruptly close their doors, often without any semblance of a plan for continuing their operations.
With permitting and construction among those activities affected by the sudden stoppage of ordinary business, real estate developers are feeling the pinch. To mitigate the consequences of this suspension, Governor Baker recently signed into law H.4598, An Act to address challenges faced by municipalities and state authorities from COVID-19. Among other things, the Act temporarily excuses compliance with various tax, open meeting, permitting, and licensing rules and deadlines during the COVID-19 state of emergency. The full text of the Act can be viewed here
So, what do developers – and the local boards that regulate their work – need to know about how business will be conducted under the Act? Five main things.
- Permit applications are deemed accepted on filing.
The Act permits applicants to file their applications and supporting materials by email or, where available, through an electronic portal or website established by the town to accept such filings. Check with the clerk of your town’s permitting authority to find out the best way to get your application in the right hands most quickly. So long as the local clerk certifies receipt, permit applications will be considered accepted as of the date of filing.1
- All hearing deadlines are suspended indefinitely.
As of March 10, 2020, all deadlines for scheduling permit hearings are suspended until 45 days after the Governor terminates the state of emergency. So, for example, if a local bylaw ordinarily would have required the ZBA to schedule a hearing on a particular application no later than March 20, the town is free to postpone the hearing until 55 days after the state of emergency terminates (45 days plus the 10 remaining on the original deadline). To reschedule a hearing, the permitting authority need only provide written notice to the applicant and post a message to the public on a town-sponsored website. Notwithstanding any rule to the contrary, the indefinite suspension or continuance of a hearing shall not be deemed to grant or deny a permit application.
- Existing permits do not expire.
The expiration of permits issued on or before March 10, 2020 is tolled during the state of emergency. Likewise, the time period for meeting permit deadlines and conditions is tolled.
- Recording deadlines suspended.
Until the registries of deeds reopen for business, permit holders are excused from complying with any rule that otherwise would have required them to record their permits.
- Towns prohibited from revoking permits for failure to commence work.
Under the Act, the town may not revoke or modify a permit because a permit holder failed to commence work during the state of emergency. The town may, however, revoke or modify a permit for any other lawful reason.
While the Act certainly provides developers and local boards with a necessary measure of flexibility, boards should be aware that nothing in Act requires them to suspend or reschedule hearings. Rather, the Act specifically authorizes boards to hold meetings and public hearings remotely during the state of emergency. Smart boards will consider doing so to avoid being overwhelmed by a backlog of applications when business reopens. And where many communities will be starving for economic activity when COVID-19 recedes, keeping permitting on track should help developers prepare to break ground as soon as conditions allow.
1 If an applicant’s permit is later rejected on other grounds or the applicant appeals from an adverse decision, the town has the right to contest the completeness of the application upon filing.