“To Apply or Not to Apply, that is the Question” For Permit Applicants Under COVID-19 Emergency Laws in Massachusetts – Update from McGregor & Legere, PC

COVID-19 emergency statutes, orders, rules and policies have upended the traditional schedules for municipal and regional boards and commissions, as well as state agencies, to act on land use applications for zoning, subdivision, wetlands, board of health, and other permits and approvals.

This leaves the landowner, developer, builder, lender, investor, or other project proponent wondering whether they should file their permit applications now, during the emergency procedures. Or should they wait until some degree of normalcy has returned?

What is the likely length of the delay and uncertainty? Will there be a crush of pending and new work for the boards and agencies to process? Should one get in line now just to save a place in the queue?

On April 3, 2020, Governor Baker signed Chapter 53 of the Acts of 2020, known as the “Municipal Relief Act” (the “Act”). Among other things, it provides flexibility to conservation commissions, planning boards, zoning appeal boards, boards of health, building inspectors, and other local, district, county or regional permit granting authorities to reschedule or delay opening public hearings and issuing decisions on permit applications while social distancing prevents in-person public hearings on permit applications.

A week before the Act, on March 24, 2020, Governor Baker issued COVID-19 Order No. 17: “Order Suspending State Permitting Deadlines and Extending the Validity of State Permits”, gives state agencies additional time, too, to act on what is pending or is filed in the meantime.

Anyone planning on filing a permit application with any governmental boards, commissions, or agencies should be aware of the new powers these authorities have to alter or extend (actually, delay) the usual timelines for reviewing and issuing decisions on applications.

It is more important than ever to check with the specific governmental entity well before filing and again when ready to file any application. There are some mutual understandings and expectations to memorialize.

Specifically, municipal boards under the Act can postpone further action on pending applications, for which the public hearing was opened before March 10, 2020, to their first meeting within 45 days of the end of the state of emergency. Obviously, this could amount to a large number, creating quite a backlog for them to handle by or at their first meeting.

For applications filed before March 10, 2020, for which the hearing was not opened, and for applications filed after March 10, 2020, municipal boards may postpone opening the hearing until 45 days after the end of the state of emergency. Again, this could create quite a pile of applications that all require hearings to be opened at about the same time.

Importantly, the Act gives the chair of a municipal board or commission authority to reschedule, more than once and without a quorum present, pending matters. This is considerable discretion in one official. Fortunately, there is an effective notification requirement.

It is significant that the Act does not require municipal boards and commissions to postpone their hearings and decisions, but rather allows them to proceed as before if they wish. To facilitate this going forward with pending or even new business, they are allowed to proceed by holding meetings and hearings remotely using video technology, such as Zoom, that allows for public attendance and participation.

An applicant from homeowner to Fortune 500 company has a stake in such business-as-usual going smoothly and effectively any approval is valid.

Likewise, Governor Baker’s COVID-19 Order No. 17 gives similar timeline flexibility to state agencies during the COVID-19 pandemic, but allows them to proceed with their agency business in the meantime, if they can and wish. Time periods or deadlines for hearings, and deadlines to make decisions on state permits, are suspended during the state of emergency and the applicable time period resumes 45 days after the end of the state of emergency.

The Governor’s Order suspends the running of any such time periods for state agencies until 45 days after the termination of the state of emergency. A wise applicant will reach agreement, in writing and in advance, on how a pending or new project application will be handled.

On a related aspect for some applicants, the Governor’s Order No. 17 and the Act address what happens under the provisions in some laws (not all) whereby permit applications are constructively approved or deemed denied if no action is taken within a certain period of time. The Act suspends such automatic approval/denial provisions as long as the local or district permit granting authority acts within 45 days of the end of the state of emergency, or other mutually agreed-to date.

Not only have the permit processing timelines changed, as above, but also the manner in which applications are filed. Under the Act, a land use permit must be filed with the city or town clerk (a departure from many existing laws), and receipt of the application is to be acknowledged by the clerk. This is unless the permit granting authority has an “electronic submission website”, a term not defined by the Act, but could mean a comprehensive on-line portal to fill out, submit, and pay filing fees for an application, and track its review process.

Many cities and town do not have such a set-up or one for each board or commission. The Act does, fortunately, allow for e-mailing to the municipal clerk in lieu of mailing, although the filling fee may still need to be paid by check. This may require, however, bifurcating the application filing and fee payment, since most laws still say the filing is not valid or complete unless and until the proper fee is paid.

With most, if not all, town and city halls and state agencies closed to the public, and a majority of office staff working from home, hand delivery of an application is no longer possible or reliable. Each board and agency, and often each program within, has its own protocols for filing or inquiring about an application, which usually involves e-mailing a copy of the application even if it still must be mailed.

The website for each city or town, or state agency, should be consulted early and then frequently as such procedures often change. Some municipalities are accepting mail deliveries and opening and procession applications almost as usual, except for delayed hearings, which will be virtual. Others are leaving the mail unopened and planning to delay resuming business until after the emergency ends, whenever that turns out to be.

It should not surprise that with all these additional review and decision times the emergency laws give to local, district, county, and state permitting authorities, there likely will be a backlog of pending applications and slug of new applications which will have to be processed soon after the state of emergency ends.

Given the anticipated number and nature of applications awaiting reactivation, consideration and action, it behooves anyone contemplating filing a permit application of any kind to file it sooner rather than later, in a form and by a means that is current as confirmed in advance, rather guessing what to do. It is best to be closer to the head of the line when the line starts to move.