Real Estate Development in the Time of Coronavirus: Massachusetts – Update – October 2020

Pierce Atwood LLP

NEW GUIDANCE ON PUBLIC HEARINGS ON HOUSING PROPOSALS

The Massachusetts Department of Housing & Community Development (DHCD) recently issued guidance for municipalities regarding housing development. This guidance relates to a municipal relief act passed in April (Chapter 53 of the Acts of 2020). Chapter 53 stayed all statutory deadlines requiring municipal boards and commissions to act on development applications for the duration of the COVID-19 state of emergency.

Normally, if an application is not acted on within statutory time frames, the result may be constructive approval of permits. The DHCD guidance notes that Massachusetts Governor Charlie Baker greatly loosened open meeting law requirements during the state of emergency by executive order, allowing public boards and commissions to meet remotely by video or by telephone (this order is incorporated into Chapter 53).

The DHCD Guidance addresses two problems. First, some municipalities resumed public meetings remotely right away, others waited months, and some have held no public meetings since March. The result is a loss of predictability in an industry that requires it for financing and construction schedules. Second, there has been inconsistent treatment of development applications based, in part, on public interest in a project. Concerns about such inconsistent treatment undoubtedly played a role in the establishment of statutory deadlines for closing hearings in the first place.

While the DHCD guidance is not binding, it is helpful to understand the position of this agency with a hand in housing production and affordable housing management across the Commonwealth. DCHD urges municipalities to hold remote hearings on housing development applications if possible. The guidance also reminds municipalities that Chapter 53 does not allow inconsistent treatment of applications, and that picking and choosing which applications to hear may violate state and federal fair housing laws.

MASSACHUSETTS EVICTION MORATORIUM EXPIRES

The Commonwealth’s moratorium on residential evictions, certain residential foreclosures, and certain commercial evictions (Chapter 65 of the Acts of 2020) expired on October 17, 2020. While some Massachusetts municipalities have passed local eviction moratoriums, it is currently unclear how Massachusetts courts will handle eviction filings.

The federal eviction moratorium issued by the Centers for Disease Control and Prevention (CDC) is facing multiple court challenges, but as of this writing has not been struck down. This moratorium expires by its own terms at the end of 2020. Unlike the now-expired state moratorium, the CDC moratorium does not impact commercial properties or foreclosures, and it places the onus on tenants to qualify and landlords to comply.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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