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Law & orders to keep local gov moving: What it means for affordable housing?

Posted on April 23, 2020

Since the COVID-19 health emergency, Massachusetts has passed a law and signed three executive orders to help cities and towns pass budgets and keep local government moving. MHP municipal expert Katy Lacy - a former town planner - boils down the measures and what it means for affordable housing.

An Act Addressing Municipal Challenges

Passed by the state legislature and signed by Gov. Baker on April 3, the law allows for the postponement of town meetings, sets rules for starting FY21 without an approved budget, and amends provisions related to the collection of local taxes. The Division of Local Services has more details.

What it means for affordable housing: Section 17 temporarily relaxes some requirements and extends many deadlines for local “Permit Granting Authorities," including planning boards, zoning boards of appeals (ZBAs), conservation commissions and boards of health. It also codifies Gov. Baker's March 12 order suspending the Open Meeting Law. The act allows for: 

  • Permit applications may be filed electronically.
  • Effective March 10, time frames for opening a hearing are suspended until 45 days after the end of the state of emergency.
  • Existing permits are "tolled" and will not lapse due to expiration dates or lack of performance during the state of emergency.
  • Permits cannot be constructively granted due to failure of permit granting authority to act, so long as it does so within 45 days after the end of the state of emergency.
  • With no quorum present, required public hearings may be scheduled or rescheduled by the chair of a board or committee to a date no later than 45 days after the end of the state of emergency.
  • The deadline for recording permits or decisions is suspended until the Registry of Deeds re-opens.

Keep in mind that decisions about how boards and committees will proceed can vary depending on the preference and capacity of the municipality. Make sure to check with municipal officials and legal counsel. 

Order Suspending Certain Provisions of the Open Meeting Law

This suspends the rule that a quorum be physically present and allows cities and towns to hold virtual meetings. The order requires that all virtual meetings have adequate public notice, and that public access be provided through adequate, alternative means. 

What it mean for affordable housing: If done in strict accordance with the order and accompanying guidance from the Office of the Attorney General, boards and committees may – but are not obligated to – meet "remotely" to discuss housing-related matters including project proposals, zoning amendments, and housing plans. 

It is important to weigh potential legal and ethical risks associated with "virtually" addressing matters on a case by case basis. For example, rather than hold a public hearing to seek resident feedback on a specific project, it may be fairer to live stream and record an initial public planning meeting so it can be available at a later date and defer the public comment period to a later date. In all cases, it’s essential that municipal boards and committees consult with legal counsel when proceeding with a public meeting to ensure that adequate public notice and public access is being provided in accordance with the law.

Executive Order 13 re: Essential and non-Essential Businesses and Public Gatherings 

Issued on March 10, this identifies essential services, requires closure of all "non-essential" businesses, and directs essential workers to social distancing protocols established by the state Department of Public Health. 

What it means for affordable housing: This allows for limited continuation of residential construction projects if permitted by the municipality. Large cities such as Boston and Cambridge have stopped most construction, while many suburbs have let it continue. With this order, the state has developed Safety Guidelines and Procedures for Construction Sites, which must be followed by state agencies and authorities that manage or fund projects. These rules may be used by cities and towns to ensure that publicly- and privately-owned construction projects are following public health and safety guidelines. 

Order Suspending State Permitting Deadlines

This March 26 order modified the terms and conditions of licenses, permits and other approvals issued by the Commonwealth or any of its agencies. It provides for the suspension of time frames and tolling periods for constructive approvals, hearing deadlines, rights to appeal, and the validity of permits.  Such time frames should resume no later than 45 days after the end of the state of emergency.

What it means for affordable housing: If a project requires one or more approvals by a state agency, the review time frame can, and most likely will be suspended until 45 days after the end of the state of emergency.  This would apply to such actions as DEP approval of a wastewater treatment plant, a street opening permit from MassDOT, or review by the Massachusetts Historical Commission.

That said, state agencies are operational on a limited basis, so this may vary on a case by case basis. Check with the office handling the application. Also, consulting architects and engineers are working remotely and may be available to prepare projects for submission to the state when the emergency order is lifted.

More information

The Massachusetts Division of Local Services, the Massachusetts Municipal Association, and Department of Housing and Community Development has more information on these and other COVID-19 related actions. Many land use law, planning, and development companies have also published useful guidance on their websites.

(This summary was compiled by MHP municipal expert Katy Lacy, a former town planner who is tracking how local governments are adjusting during the COVID-19 health emergency. If you have questions, contact Lacy at klacy@mhp.net.)