Massachusetts took two important steps toward providing much-needed relief to developers and project proponents impacted by COVID-19: first, extending state and local permits and approvals and second, tolling and suspending related deadlines.

State Permitting

As part of Massachusetts Governor Charlie Baker’s COVID-19 pandemic response efforts, he issued an executive order on March 26, 2020, suspending state permitting deadlines and extending the period of validity of issued state permits during the State of Emergency, first announced on March 10, 2020. The order relates to approvals and permits issued by state permitting agencies concerning (a) the use, development, or rehabilitation of real property or improvements; (b) the allocation or use of water and other natural resources; and (c) the discharge, emission, and abatement or management of waste or pollutants. (The order expressly excludes enforcement orders.) Below are highlights of the order.

• Any requirement that hearings commence within a specific time frame after the filing of or appeal from a decision on an application, order, notice of intent, or request for approval will be suspended but shall resume within 45 days of the lifting of the State of Emergency;
• Any approval or permit in effect as of March 10 shall not lapse or expire during the State of Emergency, and any expiration date shall be tolled during the State of Emergency. If such approval or permit contains or is subject to other deadlines or conditions, the state permitting agency may extend such deadlines or waive such conditions if an approval holder is not able to abide by them during the State of Emergency—although this provision does not apply to any permit holders who were in violation of permits/approvals as of March 10;
• There will be no constructive grant, approval, or denial for failure of a state permitting agency to act within statutory time frames, but the running of the applicable time period shall resume 45 days after the lifting of the State of Emergency;
• Any requirement that a state permitting agency (a) issue a decision on an application, order, or other request for approval; (b) issue a decision on an appeal of an application, order, or request for approval; or (c) request a superseding order or determination within a specific period of time is suspended during the State of Emergency, provided that the running of the applicable time period will resume 45 days after the termination of the State of Emergency; and
• Any appeal rights that would expire during the State of Emergency, absent the filing of an appeal, shall have until 45 days following the termination of the State of Emergency to file an appeal.

Local Permitting

On March 30, 2020, the Senate passed a bill impacting local permits as well. This law will apply to permits (variances, special permits, licenses, amendments, extensions, orders, and the like) issued by Permit Granting Authorities (local, county, and regional bodies and officials authorized to issue permits) during the State of Emergency first announced on March 10, 2020. Some provisions use language similar to terms outlined in the state permitting executive order. Below are highlights of the new law.

• Applications may be filed electronically;
• Any requirement that hearings on applications commence within a specific time frame will be suspended but shall resume within 45 days of the lifting of the State of Emergency (or as otherwise may be prescribed by law);
• Any permit in effect as of March 10, including any related deadlines or conditions involved, shall not lapse or expire during the State of Emergency, and any expiration date or internal deadline shall be tolled during the State of Emergency;
• There will be no constructive grant, approval, or denial for failure of a Permit Granting Authority to act within statutory time frames, but the Permit Granting Authority must act within 45 days of the lifting of the State of Emergency (or as otherwise may be prescribed by law);
• The period for recording of Permits is suspended for as long as registry of deeds access is restricted, and failure to record will not preclude the permit holder from seeking other permits (including building permits) or commencing construction;
• Any hearings that were opened prior to March 10 and were not concluded or were continued shall be automatically tolled and continued to the first hearing date after the State of Emergency is lifted; and
• Meetings and public hearings may be held remotely.

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