===== Wednesday, 18 November 2020 10:44

Legislature Revises Local and Regional Permitting Deadlines as COVID-19 Pandemic Continues Featured

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Pulls Back Some COVID-19 Pandemic Relief for Local and Regional Permit Granting Authorities

With the enactment of Chapter 201 by the Massachusetts Legislature on November 10, 2020, municipal, district, county and regional permitting authorities (collectively, “permitting authorities”) now will have to take action sooner than they may have expected.

 

This likely will speed up the processing of applications before conservation commissions, zoning boards of appeal, planning boards, and boards of health, among other non-state permitting authorities.

However, for anyone holding a permit in effect as of March 10, 2020, Chapter 201 does not modify the suspension of permit expiration dates, deadlines within permits, or deadlines to record permits.

Specifically, on November 10, 2020, the Governor signed into law omnibus legislation that pulls back on, and effectively sunsets, much of the flexibility the Massachusetts Legislature gave municipal, county, and regional permit granting authorities at the outset of the COVID-19 pandemic.

This Chapter 201 of the Acts of 2020, “An Act Making Appropriations For Fiscal Year 2020 To Provide For Supplementing Certain Existing Appropriations And For Certain Other Activities And Projects”, among many other things significantly modifies Chapter 53 of the Acts of 2020, enacted in early April, 2020.

Chapter 53, entitled “An Act to Address Challenges Faced By Municipalities and State Authorities Resulting from COVID-19”, Chapter 53 became known as the “Municipal Relief Act” for providing permitting authorities at every level of government - except the state level - to postpone processing permit applications and conduct meetings remotely without dire legal consequences while Governor Baker’s March 10, 2020 COVID-19 state of emergency is in effect.

The Governor issued specific orders in March and August affecting state permits and state permit granting authorities.

Perhaps feeling that many permit granting authorities have adapted to working during the pandemic while sensing that the state of emergency would not be lifted soon, the Legislature apparently felt it was time to set more definitive and closer deadlines than “the termination of the state of emergency” which anchors many of the permitting provisions of the Municipal Relief Act.

Perhaps developers, builders, landowners, and real estate professionals and others seeking permits – or even amendments, renewals, or extensions - had complained to their state legislators about delays caused by the Municipal Relief Act.

Regardless of the motivation, Chapter 201 will phase-out many of these interim permitting authority powers and options by December 1, 2020, or soon thereafter, unless a state agency secretary grants dispensation for good cause.

For example, the Municipal Relief Act gave municipal boards the authority to postpone taking further actions on pending applications for which the public hearing was opened before March 10, 2020 (but not yet concluded) to their first meeting within 45 days of the end of the state of emergency.

Chapter 201 significantly changes that not-so-firm deadline to a very firm deadline of December 1, 2020 “unless such date is extended by relief from the secretary of housing and economic development [DHCD Secretary]”.

For permitting authorities such as local boards, agencies and officials which have been delaying the inevitable, this new December 1, 2020 deadline will be a loud wake-up call to resume permitting or to seek relief from the DHCD Secretary.

More specifically, applications filed before March 10, 2020, for which the hearing was not opened, and for applications filed after March 10, 2020, the Municipal Relief Act allowed permitting authorities to postpone, or toll, the running of any statutory or regulatory deadline to open the hearing until 45 days after the end of the state of emergency.

Chapter 201 changes this to say that the applicable time period will begin or resume on December 1, 2020 unless relief is obtained from the DHCD Secretary.

The Municipal Relief Act bestowed great authority on the chair of a permit granting authority to reschedule, more than once and without a quorum present, pending matters to a date within 45 days after the end of the state of emergency. This was considerable discretion in one official. Fortunately, there was an effective notification requirement of the chair’s action.

Chapter 201 now constrains a chair’s authority by replacing the deadline with a new one of December 1, 2020 unless relief is obtained from the DHCD Secretary.

The Municipal Relief Act tolled any constructive approval or denial of permits due to a permitting authority’s failure to act within the time required by statute, bylaw, ordinance or regulation. Such a deadline was tolled as long as the permit granting authority acted within 45 days after the end of the state of emergency or a date prescribed by law, whichever date was later.

Chapter 201 changes this tolling to say that the time period to act is tolled between March 10, 2020 and December 1, 2020, unless relief from the deadline is granted by the DHCD Secretary.

Permit granting authorities may apply to the DHCD Secretary for relief from the deadlines specified above if they are: “(i) unable to conduct meetings and public hearings remotely due to lack of access to broadband or other technical limitations; and (ii) unable to conduct such meetings or hearings in person in accordance with applicable public health orders regulating gatherings during the state of emergency.” They must show “good cause”.

If the DHCD Secretary does widely not grant such relief, this likely would speed up or break up any log jam in the processing of applications before a large number of city and town commissions, boards, and officials as well as district, county, and regional permitting entities.

Also, the Municipal Relief Act prevented a permitting authority from revoking or modifying a permit if the permit holder’s failure to exercise or start work under a permit as of March 10, 2020 was a result of the state of emergency. This permit-holder protection was to end 60 days after the end of the state of emergency. Chapter 201 now ends this protection on December 1, 2020. Relief from this deadline cannot be obtained from the DHCD Secretary.

Noteworthy is what Chapter 53 did not change relative to permits in effect as of March 10, 2020. Chapter 201 does NOT modify the Municipal Relief Act’s suspension, during the state of emergency of such a permit’s expiration date and deadlines within permits. Similarly, Chapter 201 does NOT modify the Municipal Relief Act’s tolling of the requirement to record a permit to make it effective or to exercise rights under the permit. The Municipal Relief Act suspends the requirement to record during the time the relevant registry was closed or imposed restrictions on public access. Permittees take careful note to seek extensions of any permit before the state of emergency ends and to monitor when the applicable registry re-opens or opens to the public.

In summary, with the enactment of Chapter 201, most municipal, district, county and regional permitting authorities which have been enjoying their rights under the Municipal Relief Act to postpone their permitting duties, somewhat indefinitely, now will have to get their act together to take actions very soon.

Last modified on Wednesday, 18 November 2020 11:04
Nathaniel Stevens, Esq.

NATHANIEL STEVENS, Esq. is a Senior Associate of the Firm. Since being admitted to the Massachusetts Bar in 1996, he has handled a broad range of environmental and land use matters, from administrative law to litigation. He has helped clients with environmental issues including permitting, development, contamination, transactions, conservation, real estate restrictions, underground tanks, water supply, water pollution, subdivision control, tidelands licensing, Boston and state zoning, coastal and inland wetlands, stormwater, air pollution, and energy facility siting.

Mr. Stevens’ work includes state court litigation over liability for property damage, insurance claims for environmental damage, cost-recovery for contamination cleanups, and damage to municipal lands and public natural resources. His permit-related and administrative litigation includes bringing and defending challenges to conservation commission permits for wetlands work, interpreting and enforcing conservation restrictions, and reviewing decisions by the Department of Environmental Protection (“MassDEP”). He handles adjudicatory proceedings in MassDEP, the Division of Administrative Law Appeals (“DALA”), the Energy Facilities Siting Board, and the U.S. Environmental Protection Agency (“EPA”).

In addition to litigation, Mr. Stevens has utilized dispute resolution and other problem-solving skills to efficiently and effectively achieve his client’s goals. This includes working with land owners and land conservation organizations on a variety of permitting, land use, and management issues.

Mr. Stevens has conducted training through the Citizen Planner Training Collaborative (“CPTC”) for Planning Boards and Zoning Boards of Appeals on the Zoning Act and Subdivision Control Law. He has led Massachusetts Association of Conservation Commission (“MACC”) workshops and training units for Conservation Commissions on the Wetlands Protection Act, Home Rule, the Open Meeting Law, and the Public Records Law.

Mr. Stevens has written for legal and environmental publications on subjects including wetlands protection law at the local and state level, quorum requirements for local boards and commissions, MassDEP regulatory reforms, Home Rule and preemption, EPA programs, and state Brownfields Law. His articles on changes to the Wetlands Protection Act and to the Permit Extension Act have been published by the Real Estate Bar Association, MACC, and the American Council of Engineering Companies of Massachusetts (“ACEC-MA”).

Mr. Stevens is a member of the American, Massachusetts, and Boston Bar Associations. He recently served as Co-chair of the Public Policy Committee of the BBA's Real Estate Section.

Mr. Stevens is a member of the Arlington Conservation Commission on which he served as Chair for many years. He served on the Board of Directors of the Arlington Land Trust, Inc. and on the Executive Committee and the Board of Directors of the Lake Sunapee Protective Association, a New Hampshire member-supported nonprofit education and research watershed protection organization.

Prior to law school, Mr. Stevens was awarded a John Knauss Sea Grant Fellowship to study national marine policy in Washington, D.C. During and after this national fellowship, he worked on wetlands policy issues in EPA’s Wetlands Division. In his first year of law school, Mr. Stevens was awarded “Best Brief” in Moot Court Competition. In his second year of law school, he obtained through a writing competition a position on one of the school’s two law journals and published an article on hydropower.

Mr. Stevens is a graduate of Vassar College and Suffolk University Law School (cum laude), with a Masters of Science in Natural Resource Policy and Planning from the University of Michigan’s School of Natural Resources.

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