Massachusetts Governor Files Bill and Issues Executive Order to Ease Permitting Process During COVID-19

Client Alert
April 5, 2020

Subsequent to the issuing of this alert, the Bill was enacted as An Act to address challenges faced by municipalities and state authorities resulting from COVID-19.

Massachusetts continues to expand its response to the novel coronavirus ("COVID-19"), by taking additional steps to ease the burden on the Commonwealth’s developers, businesses, local municipalities, and residents. As the full impact of the economic effects of COVID-19 materialize, lawmakers are now concentrating on the permitting process, with Governor Baker filing legislation, entitled, An Act to Further Address Challenges Faced by Municipalities, School Districts, and State Authorities Resulting from COVID-19 (the “Bill”) and issuing an Order Suspending State Permitting Deadlines and Extending the Validity of State Permits, COVID-19 Order No. 17 (the "Executive Order").  

MUNICIPAL PERMITS

The Bill proposes significant modifications to the local permitting process for the duration of the emergency. "Permit" is defined in the Bill as any permit, variance, special permit, license, amendment, extension and other approval issued by a municipal, county or regional permit official or multi-member body authorized to grant permits. The changes would provide relief for developers and others holding permits that are set to expire as well as for municipalities subject to statutory deadlines for acting on permit applications. They also would relax rules governing the filing of applications and conduct of public meetings. If enacted, any time limits or mandates that a hearing be held within a certain period of time would be tolled until 45 days after the state of emergency terminates.

Key changes to the municipal permitting process include the following:

STATE PERMITS

As presently drafted, the proposed Bill does not apply to any permits pending before any state permitting agency, such as the Massachusetts Department of Environmental Protection and the Massachusetts Department of Public Utilities . The Executive Order, however, does significantly modify the state permitting process for the duration of the emergency. Similar to the Bill, the Executive Order provides relief for developers and others holding permits that are set to expire as well as for state permitting agencies subject to statutory deadlines for acting on permit applications, by relaxing the rules governing the filing of applications and how meetings will be conducted, with a few key differences.

For example, a “state permitting agency" is defined in the Executive Order as any agency, board, bureau, department, office, committee, division, or official of the Commonwealth, which issues approvals and is within or reports to the Executive Office of Energy and Environmental Affairs or the Executive Office of Housing and Economic Development. Thus, for example, the Massachusetts Department of Transportation is not included.  An "approval" is defined in the Executive Order as any permit, including an environmental permit, certificate, license, certification, determination, exemption, variance, waiver, state building permit, or other determination of rights issued by a state permitting agency, including any order concerning the use, development, or rehabilitation of real property or improvements located on the real property, the allocation or use of water and other natural resources, or the discharge, emission, abatement, or management of waste or pollutants. The Executive Order specifically excludes any enforcement order (as that term is defined in the Executive Order). 

Key changes to the state permitting process include the following:

In this time of increased uncertainty and restrictions, lawmakers are trying to ease the burden on developers, businesses, state permitting agencies, municipalities, and residents as they deal with disruptions and obstacles to the permitting process caused by the COVID-19 crisis.

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