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Massachusetts Land Use Permitting Under COVID-19 Rules: Emergency Legislation, Executive Orders, and Court Orders Affecting Environmental and Real Estate Approvals

This is a full accounting of land use permitting rules which were modified on April 3, 2020 in response to the COVID-19 pandemic. It includes particulars on Legislation, Executive Orders, and Court Orders.

I. Legislation

A. Chapter 53 of the Act of 2020

i. An Act to Address Challenges Faces by Municipalities and State Authorities Resulting from COVID-19, aka “Municipal Relief Act”.

ii. Signed April 3, 2020.

iii. Effective immediately. Sections 2-4 effective retroactively to March 10, 2020.

iv. During the Governors March 10, 2020 declaration of a state of emergency… (§ 17)

1. Permit application is deemed duly filed and acted on the day of filing if filed with and certified as received by City/Town Clerk. § 17(b)(1).

2. Permit granting authority may contest the completeness of an application at the time of filing “if the application is ultimately denied by the permitting board on other grounds or is the permit is ultimately appealed by the applicant.” § 17(b)(1).

3. Application for a permit may be filed electronically, “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 clerk.” Applicant can request certification of receipt. § 17(b)(1).

4. Statutory, ordinance, bylaw, rule, or regulatory requirements that a hearing begin within a certain amount of time after the filing of an application are suspended as of March 10, 2020. Period resumes 45 days after the termination of the state of emergency. § 17(b)(ii).

5. Hearings on permit applications opened (but not closed) by start of state of emergency, March 10, 2020 are automatically tolled and continued to the “first hearing date of the permit granting authority following the termination of the state of emergency.” § 17(b)(vii).

6. Permits in effect as of March 10, 2020 shall not lapse or otherwise expire, and shall toll during the state of emergency. § 17(b)(iii). McGregor & Legere, P.C.

7. No permit shall be considered granted, approved, denied, constructively, or otherwise, due to a failure of the permit granting authority to act within the time required by statute, ordinance, etc. During and until 45 days after the termination of the state of emergency “provided further, that the applicant and permit granting authority may agree to alternate timing in writing.” § 17(b)(iv).

8. Regardless the time periods for a permit to be heard or acted upon, chair of a permit granting authority may declare to schedule or reschedule, on one or more occasions, the hearing or decision deadlines on a permit application. Chair’s declaration can be without quorum to vote on the reschedule, provided no date is rescheduled for more than 45 days after end of the state of emergency or a date otherwise prescribed by law, whichever is later. Chair must provide written notice of any applicable rescheduled dates or deadlines to the applicants at the applicant’s address and to the general public by posting on website of city or town clerk. § 17(b)(v).

9. If a permit needs to be recorded at the registry of deeds within a certain period of time, that time is suspended while public access is prohibited, and failure to record the permit shall not preclude the permit holder from applying for, obtaining, or commencing construction activities pursuant to other required permits and approvals. Any building permit issued “shall be considered duly issued pursuant to section 6 of chapter 40A”. § 17(b)(vi).

10. Permit granting authorities, if following applicable notice and hearing requirements, can revoke or modify a permit if the applicable law authorizes such revocation or modification (as long as the revocation or modification is not a result of the permit holder failing to do something because of the state of emergency). This section is in effect until 60 days following the state of emergency. § 17(c).

11. Permit granting authorities can have remote hearings, consistent with the Governor’s March 12, 2020 Order Suspending Certain Provisions of the Open Meeting Law. § 17(d).

12. Permit granting authorities can still issue decisions if hearings have been held, and building permits can still be issued. § 17(e).

13. Above applies to “public meetings, public hearings or other actions taken in a quasi-judicial capacity by all local boards and commissions.” § 17 (f).

II. Executive Orders and Other Orders by the Governor

A. Emergency Declaration, March 10, 2020

i. Effective March 10, 2020.

ii. No. 591: Declaration of a State of Emergency to Respond to COVID-19

iii. Governor Baker declares State of Emergency due to Corona Virus outbreak.

iv. Effective until “notice is given, pursuant to [Governor Baker’s] judgment, that the State of Emergency no longer exists.”

B. Emergency Order: Order Extending the Closing of Certain Workplaces and Prohibiting Gatherings of More Than 10 People, COVID-19 Order No. 30

i. Signed April 28, 2020 and in effect until May 18, 2020 unless further extended.

ii. This is the third Order of this nature. This order replaced COVID-19 Order No. 21, signed March 31, 2020, which was initially set to expire May 4, 2020, which in turn replaced COVID-19 Order No. 13, signed March 23, 2020, which was initially set to expire on April 7, 2020.

C. Order Suspending Certain Provisions of the Open Meeting Law, G.L. c. 30A, sec. 20

i. Signed March 12, 2020.

ii. Effective until “rescinded or until the State of Emergency is terminated”.

iii. Relives public bodies from the OML requirement to meet in a public place that is physically accessible to the public, if there is “adequate, alternative means of public access” such as “public access through telephone, internet, or satellite enables audio or video conference or any other technology that enables the public to clearly follow the proceedings of the public body whose activities are occurring.” § 1.

iv. Authorizes remote participation by member of the public body, and suspends the requirement that a quorum be physically present at a meeting. § 2.

v. Public body must ensure that anyone required or entitled to appear before the public body is able to do so through remote means. § 3.

vi. All other provisions of the OML remain in effect. § 4.

D. Order Suspending State Permitting Deadlines and Extending the Validity of State Permits: COVID-19 Order No. 17

i. Signed March 26, 2020.

ii. Effective “until rescinded or until the state of emergency is terminated, whichever happens first.”

iii. Constructive approvals: No approval/denial shall be constructively obtained due to a state agency’s failure to act within the time required by any statue, rule, or regulation. “Running of the applicable time period shall resume 45 days after the termination of the state of emergency.” § a. McGregor & Legere, P.C.

iv. Hearing deadlines: requirements that a hearing start within a certain amount of time is suspended. “Running of the applicable time period shall resume 45 days after the termination of the state of emergency.” § b.

v. Decision deadlines: the time that state permitting agencies have to issue a decision is suspended during the state of emergency. Applicable time period will resume after the termination of the state of emergency. § c.

vi. Appeal rights: Any aggrieved person, whose time to appeal would expire during the state of emergency, has an additional 45 days after the state of emergency ends. § e.

III. Court Orders

A. [Superseded: see C. below] SJC - OE-144: Order Regarding Court Operations Under the Exigent Circumstances Created by the COVID-19 (Coronavirus) Pandemic

i. Entered April 1, 2020.

ii. Effective April 6, 2020, remains in effect until “further order of the court.”

iii. Until at least May 4, 2020, all Courts are open for business, but closed to the public unless an emergency matter. § 2.

iv. Court Clerk’s and Registers offices “shall continue to conduct court business, i.e. to accept the filing of pleadings and other documents in emergency matters…. All such business will be conducted virtually.” § 4.

v. All statutes of limitation are tolled from March 17, 2020 through May 3, 2020. § 11.

vi. Unless otherwise ordered by the applicable court, all deadlines, set forth in statutes or court rules, standing orders, tracking orders, or guidelines that expired or will expire between March 16, 2020 and May 4, 2020, are tolled until May 4, 2020. § 12.

vii. This Order does not affect any court’s consideration of non-emergency matters that can be resolved virtually. § 15.

B. [Superseded: see C. below] SJC OE-144: Updated Order Regarding Court Operations Under the Exigent Circumstances Created by the COVID-19 (Coronavirus) Pandemic

i. Entered April 27, 2020.

ii. Effective May 4, 2020 and remains in effect until “further order of the court.”

iii. Repeals and replaces the above SJC Order issued April 1, 2020. McGregor & Legere, P.C.

iv. Until at least June 1, 2020, all Courts are open for business, but closed to the public unless an emergency matter. § 2.

v. Court Clerk’s and Registers offices “shall continue to conduct court business, i.e. to accept the filing of pleadings and other documents in emergency matters…. All such business will be conducted virtually.” § 4.

vi. All statutes of limitation are tolled from March 17, 2020 to through May 31, 2020. § 11.

vii. Unless otherwise ordered by the applicable court, all deadlines, set forth in statutes or court rules, standing orders, tracking orders, or guidelines that expired or will expire between March 16, 2020 and June 1, 2020, are tolled until June 1, 2020. § 12.

C. SJC OE-144: Second Updated Order Regarding Court Operations Under the Exigent Circumstances Created by the COVID-19 (Coronavirus) Pandemic

i. Entered May 26, 2020.

ii. Effective June 1, 2020, remains in effect until “further order of the court.”

iii. Until at least July 1, 2020, all Courts are open for business, but closed to the public unless an emergency matter. § 2.

iv. Each Trial Court has issued standing orders/guidance identifying categories of emergency and non-emergency business, and shall now identify any additional categories of non-emergency business that it will attempt to address virtually. § 5.

v. Court Clerk’s and Registers offices “shall conduct emergency and non-emergency court business, including accepting the filing of pleadings and other documents, scheduling and facilitating hearings, and issuing orders.” § 6.

vi. All civil statutes of limitation are tolled from March 17, 2020 through June 30, 2020. § 12.

vii. Unless otherwise ordered by the applicable court, court department or presiding judge, all deadlines, set forth in statutes or court rules, standing orders, tracking orders, or guidelines or court-ordered deadlines that expired or will expire any time from March 17, 2020 through June 30, 2020, are tolled until July 1, 2020. § 13, 14.

D. [Superseded: see E. below] Land Court: Standing Order 5-20: Updated Emergency Measures in Response to Coronavirus Outbreak

i. Adopted May 1, 2020.

ii. Effective May 4, 2020.

iii. Replaces Standing Order 4-20: Emergency measures in response to corona virus outbreak (restated), which was initially adopted on April 1,2020 and effective April 6, 2020, which earlier replaced Land Court Standing Order 2-20 (Emergency Measures in Response to Coronavirus Outbreak) issued March 13, 2020 and Land Court Standing Order 3-20, (Supplement to Emergency Measures in Response to Coronavirus Update), issued March 17, 2020.

iv. Remains in effect until further order of the court.

v. “Effective May 4, 2020, and continuing until at least June 1, 2020, the Land Court will attempt to address virtually certain categories of non-emergency business, in whole or in part, where it is practicable to do so in view of skeletal staffing, technological constraints, and the need to prioritize emergency matters, and where doing so is consistent with the protection of constitutional rights.” § V.

vi. “New complaints and other filings in cases pending on the court’s Miscellaneous (“MISC”) docket which have been received by the court will be accepted and docketed as of the date of their receipt.” § V(A).

E. Land Court: Standing Order 6-20: Updated & Restated Emergency Measures in Response to Coronavirus Outbreak

i. Adopted May 27, 2020.

ii. Effective June 1, 2020.

iii. Replaces Standing Order 5-20.

iv. Remains in effect until further order of the court.

v. “…until at least July 1, 2020, the Land Court Recorder’s Office at the Suffolk County Courthouse is closed to in-person access by the general public…”

vi. The Land Court will “attempt to address virtually certain categories of non-emergency business” where “it is practicable to do so in view of limited court staffing, technological constraints, legal constraints…”

vii. Order included “Additional Directives and Procedures of the Land Court for the Conduct of Emergency and Virtual Court Business,” with specific procedures on how to contact the court, what to send to the court, and how matters ay proceed.

F. [Superseded; see G. below] Superior Court: Superior Court Standing Order 6-20 Updated Protocol Governing Superior Court Operations During the Coronavirus (COVID-19) Pandemic

i. Issued April 29, 2020.

ii. Effective May 4, 2020.

iii. Replaces Superior Court Standing Order 4-20: Superior Court operation during the coronavirus (COVID-19) pandemic which was initially adopted April 1, 2020 and effective April 6, 2020.

iv. Remains in effect until further order of the court.

v. “Until at least June 1, 2020, the Superior Court will be open to conduct court business, but courthouses will be closed to the general public except where entry is required to address an emergency matter that cannot be resolved virtually (i.e., by telephone, videoconference, email, or comparable means, or through the electronic filing system) because it is not practicable or would be inconsistent with the protection of constitutional rights.” – § I(A)

vi. “[I]n those counties that have efiling,” the Clerk’s Offices shall continue to “process filings received by efilings as promptly as possible consistent with limited staffing.” § IV(A)(2).

vii. “All Superior Court Clerk’s Offices shall continue to…accept all filings by mail and docket them as promptly as possible with limited staffing.” § IV(A)(3).

G. Superior Court: Superior Court Standing Order 7-20 Second Updated Protocol Governing Superior Court Operations During the Coronavirus (COVID-19) Pandemic

i. Issued May 28, 2020.

ii. Effective June 1, 2020.

iii. Replaces Superior Court Standing Order 6-20: Updated Protocol Governing Superior Court Operations During the Coronavirus (COVID-19) Pandemic which was initially adopted April 29, 2020 and effective May 4, 2020.

iv. Remains in effect until further order of the court.

v. “Until at least July 1, 2020, the Superior Court will remain open to conduct emergency and non-emergency business in civil and criminal matters, and to adjudicate these matters. But courthouses will be closed to the general public except where entry is required to address an emergency matter that cannot be resolved virtually (i.e., by telephone, videoconference, email, or comparable means, or through the electronic filing system) because it is not practicable or would be inconsistent with the protection of constitutional rights.” – § I(A)

vi. “[I]n those counties that have efiling,” the Clerk’s Offices shall continue to “process filings received by efilings as promptly as possible consistent with limited staffing.” § IV(A)(2). McGregor & Legere, P.C. Page 8 of 8

vii. “All Superior Court Clerk’s Offices shall continue to…accept all filings by mail and docket them as promptly as possible with limited staffing.” § IV(A)(3).

Note: Superior Courts that take electronic filing are Middlesex, Barnstable, and Worcester.

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