Real Estate Permitting Update: Massachusetts – 5/19/21

On May 17, 2021, Massachusetts Governor Charlie Baker announced that the state of emergency declared on March 10, 2020 will likely end on June 15, 2021. Both state and local permits were extended while the state of emergency has been in effect. Those tolling provisions would expire on June 15, 2021.

Open meeting law changes allowing boards and commissions to meet remotely would also expire on June 15, 2021. The Massachusetts Legislature is considering separate bills that would extend the time that certain permits are in effect and amend the open meeting law to allow for more remote participation. Whether these bills will become law remains uncertain. 

Local Permits

The Massachusetts Legislature extended local permits and permit deadlines in response to the COVID-19 pandemic in Section 17(b)(iii) of Chapter 53 of the Acts of 2020 Under this law, any permit “in effect or existence as of March 10, 2020,” and any permit deadlines were tolled during the state of emergency. This section of Chapter 53 was unchanged by later amendments.

The definition of “permit” in Chapter 53, Section 17(a) includes any “approval issued by a permit granting authority pursuant to a statute, ordinance, bylaw, rule or regulation, whether ministerial or discretionary.” The general understanding is that the duration of the state of emergency – the time from March 10, 2020 to (presumably) June 15, 2021 – is added to permits and permit deadlines if permits were valid on March 10, 2020 or issued after March 10, 2020. For permits issued before March 10, 2020, the time remaining to act begins to run again when the state of emergency ends.

State Permits

Governor Baker issued Order No. 42 on July 2, 2020 This order relied on the governor’s special authority during the state of emergency and will expire when the state of emergency ends. It covers permits issued by “a state permitting agency.” Section 3 of the order tolled the time that permits are in effect for the duration of the state of emergency. Critically, with one exception, the order did not itself toll deadlines in permits, but rather allowed state agencies discretion to extend deadlines.

The exception to the rule regarding deadlines is that the time to record a permit was tolled during the state of emergency, which has particular relevance for Chapter 91 licenses that must be recorded within 60 days. This order clearly explains that the time left before any permit lapsed as of March 10, 2020 will be the time remaining as of June 15, 2021.

Open Meeting Law

Governor Baker issued Order No. 1 on March 10, 2020 suspending certain provisions of the Open Meeting Law. This order has allowed public meetings to occur remotely, with remote participation by members of the public. This order will expire with the state of emergency on June 15, 2021. This is likely to cause significant disruption to the regular operations of municipalities across Massachusetts. With a return to compliance with open meeting rules, delays in obtaining permits can be expected. Capacity limits, social distancing, and mask requirements are likely over the next few months as public bodies return to in-person meetings.

For questions on these latest changes, or any other real estate development issue, please contact Dan BaileyPaula DevereauxDon Pinto, or Gareth Orsmond.