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

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:

• No Permit will be automatically granted, approved, or denied because a local permitting authority does not act within a time period required by law, provided the permitting authority acts within 45 days following the end of the state of emergency. 
• A Permit, including any conditions or deadlines in the Permit, will not lapse or expire during the state of emergency, and any expiration date or deadline for performance shall be tolled during the state of emergency. In addition, Permits may not be modified or revoked for failure of the permit holder to commence or continue work if attributable to the state of emergency, although they may be for other reasons when so authorized by law or the permit itself. The protections against modification and revocation last for 60 days after termination of the state of emergency.
• Permits may be filed electronically, either through an electronic submission website established by the permit granting authority or by submitting application materials by email, in order to eliminate the need for any in-person filing.
• Any hearing on a pending application for a Permit opened prior to March 10, 2020 which has not been concluded shall be automatically tolled and continued to a date no later than 45 days after cessation of the state of emergency.
• Permit granting authorities will be allowed to hold remote meetings and public hearings, enabling them to be consistent with social distancing protocols.
• If a Permit must be recorded with the local Registry of Deeds, the time period for recording the Permit will be suspended, and the failure to record the Permit will not preclude the permit holder from obtaining any building permits and commencing construction.

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:

• No approval shall be considered granted, approved, or denied, constructively or otherwise, due to a failure of a state permitting agency to act within the time required by statute, rule, or regulation, with that time period resuming 45 days after the termination of the state of emergency.
• Hearing deadlines that are required to begin within a specific time period after the filing or appeal of a decision on an application, order, notice of intent, petition, or request for an approval are suspended during the state of emergency, with that time period resuming 45 days after the termination of the state of emergency.
• Any requirement that a state permitting agency (i) issue a decision on an application, order, notice of intent, petition, or request for approval, (ii) issue a decision on an appeal of an application, order, notice of intent, petition, or request for approval, or (iii) request a superseding order or determination, within a specific period of time is suspended during the state of emergency, with that time period resuming 45 days after the termination of the state of emergency.
• Any person aggrieved by a state permitting agency’s decision or final decision whose right to appeal would expire during the state of emergency has until 45 days following the termination of the state of emergency to file an appeal.
• Any approval validly issued by a state permitting agency as of March 10, 2020 will not lapse or otherwise expire during the state of emergency, and the expiration date of the approval will toll during the state of emergency. To the extent that any approval contains or is subject to other deadlines or conditions, the state permitting agency may extend those deadlines or waive the conditions if, due to the state of emergency, the permitee is not able to abide by the deadlines or conditions. This permit tolling provision does not apply to any holder of an approval who was in violation of the terms and conditions of the approval as of March 10, 2020.

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.