===== Tuesday, 01 June 2021 12:06

What the Lifting of the COVID-19 State of Emergency in Massachusetts Will Mean for Boards and Commissions Featured

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Governor Baker recently announced that, on June 15, 2021, he will lift the State of Emergency he declared on March 10, 2020 in response to the COVID-19 pandemic. This State of Emergency is the basis for and the reference point for many orders, laws, policies, and provisions which gave local boards and commissions great flexibility in how they conducted business over the last year or so. A list of the Governor’s orders is available here.

These measures gave municipal bodies the ability to hold meetings and public hearings virtually rather than in-person, and the authority to unilaterally extend deadlines to open a hearing on an application or even to issue a permit. Also, the expiration dates of permits were tolled, meaning postponed or put off.

Absent any new laws passed by the Legislature and approved by the Governor to preserve any of these measures which city and town boards enjoyed using over the past fourteen months, things will return to pre-pandemic operations and requirements very soon on June 15, 2021.

Open Meeting Law: Within days of declaring the State of Emergency, Governor Baker issued an “Order suspending Certain Provisions of the Open Meeting Law”, which, if certain conditions were met, relieved boards (and other public bodies) from having to hold meetings in a public place that is open and physically accessible to the public. Also, remote participation by all members of the public body, rather than just a few members, was allowed. Essentially, this Order permitted remote or virtual meetings and hearings, which have usually been conducted through Zoom and similar computer technology.

Unless Governor Baker rescinds this order earlier, it will no longer be in effect on June 15 when he terminates the State of Emergency. This will mean a return to in-person meetings and hearings, with remote participation being a limited and narrow option for one or two board members, but no option for a quorum of members. This means one or two members could participate remotely, but the not the whole body.

Permitting Procedure Timelines: Also in the spring of 2020, local boards were given additional tools and authority by Chapter 53 of the Acts of 2020, commonly known as the Municipal Relief Act, to adapt to continuing business during the pandemic. Many of those new powers previously were set to expire on, or within a certain number of days following the end of the State of Emergency, which, at that time, was unknown. Chapter 201 of the Acts of 2020, enacted last November, shortened the duration of such powers by sunsetting them instead on December 1, 2020 unless the municipal board obtained relief (i.e., an extension) for good cause from the Secretary of Housing and Economic Development (“DHCD Secretary”) for a particular matter.

These two Acts of 2020 gave local boards additional time to open a hearing on an application filed after March 10, 2020 and additional time to continue a hearing on an application for which a hearing had been opened prior to March 10, 2020. Also, as long as they notified the applicant, a board chair had the authority to unilaterally reschedule, more than once and without a quorum present, a pending matter to a date on or before December 1, 2020, unless they obtained permission for a later date from the DHCD Secretary.

The lifting of the Emergency Order will not alter the ability of a board to seek relief from deadlines from the DHCD Secretary, though as time passes, the need for this provision to be invoked seems less likely.

Permit Expiration and Recording: The Municipal Relief Act prevented any permit in effect as of March 10, 2020 from lapsing or expiring. The expiration date of the permit, or time periods for meeting permit conditions, was and remains tolled during the State of Emergency. This will end on June 15 with the lifting of the State of Emergency. This tolling, by the way, is not the wholesale extension of all permits that the Permit Extension Acts provided about a decade ago. Boards now, therefore, might expect a surge in permit extension requests.

Also, the Municipal Relief Act tolled the requirement to record a municipal permit to make it effective. The Municipal Relief Act suspends this requirement only for so long as the relevant Registry of Deeds was or is closed or subject to restrictions on public access. The termination of the State of Emergency on June 15 may force a Registry to open or remove restrictions on public access.

MassDEP: Kathy Baskin, Assistant Commissioner for the Bureau of Water Resources at MassDEP, recently advised that MassDEP staff likely will not return to their offices until November of this year, at the earliest, so local boards such as conservation commissions, as well as those filing applications with such boards, likely will, after June 15, still interact with MassDEP as they have been doing in recent months. This means continuing to mail as well as email copies of documents required to be provided to MassDEP, and to plan on additional time to reach MassDEP staff as most keep working remotely.

Unless the Legislature and Governor quickly approve pending legislation to preserve some of the powers on which municipal boards have relied since the beginning of the pandemic, the pre-pandemic procedures, laws, and regulations governing board meetings, permitting, and permits will kick back in place on June 15, 2021 with the expected lifting of the State of Emergency. Stay tuned.

Last modified on Wednesday, 02 June 2021 12:33
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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