Written by Nathaniel Stevens, Esq.
On March 24, 2020, Governor Baker issued COVID-19 Order No. 17: “Order Suspending State Permitting Deadlines and Extending the Validity of State Permits”, which, among other things, gave state agencies additional time to act on pending or new permit applications and conduct administrative hearings. This Order applied only to state agencies within or reporting to the Executive Office of Energy and Environmental Affairs or the Executive Office of Housing and Economic Development.
This Order also provided that any timeline giving a constructive approvals or denials of a permit would be suspended until 45 days after the Governor’s March 10, 2020 declaration of a state of emergency due to the COVID-19 Coronavirus. Similarly, the Order suspended and tolled the expiration of a state permit during the state of emergency.
On July 1, 2020, the Governor issued COVID-19 Order No. 42, “Order Resuming State Permitting Deadlines and Continuing to Extend the Validity of Certain State Permits” which explicitly rescinds Order No. 17 in its entirety. However, Order No. 42 covers many of the same issues but decouples many deadlines from the end of the state of emergency and instead provides specific dates.
Timelines that would run and result in constructive approvals and denials no longer will be tolled until 45 days after the end of the state of emergency. Now, state agencies have until August 17, 2020 to act on applications that would have been constructively approved or denied between March 10, 2020 and July 1, 2020. For applications that would have been constructively approved or denied after July 1, 2020, the timeline shall be either August 17, 2020 or the applicable regular statutory or regulatory deadline, whichever is later.
Any specific time period for an agency commence a hearing on an application or appeal was tolled and was to resume 45 days after the end of the state of emergency. Now, all hearings a state agency was required to commence between March 10, 2020 and July 1, 2020 must start on or before either August 10, 2020 or the applicable regular statutory or regulatory deadline, whichever date is later.
Order No. 42 makes similar changes in timeframes for two additional areas. The first is deadlines for an agency to make a decision on a permit application or on an appeal, or to request a superseding order or determination. The second is the deadline for any person aggrieved the decision or final decision of a state agency to file an appeal.
Notably, Order No. 42 does not change the provisions for permit tolling. As with Order No. 17, the expiration date of and any deadline to record an approval issued by a state agency is tolled during the state of emergency. Order No. 42 does, however, provide an example of how to calculate the revised deadline.
Order No. 42 continues to give the state permit granting authority to extend or waive the deadline for complying with a condition in an approval if the inability to comply is due to the state of emergency. However, like with Order No. 17, permit tolling or complying with permit conditions does not apply to a permit holder who was in violation of the terms and conditions of a permit as of March 10, 2020.