Governor Baker issued a new Executive Order effective Tuesday, March 24, closing non-essential businesses to the public with the exceptions of businesses who provide an essential service: https://www.mass.gov/doc/march-23-2020-essential-services-and-revised-gatherings-order/download
This Executive Order designates Construction as an essential service. Following the Executive Order, Governor Baker issued a list of essential businesses and activities that are considered essential and exempt from closing its operations:
- "Construction Workers who support the construction, operation, inspection, and maintenance of construction sites and construction projects (including housing construction)" and also
BBRS Issues Guidance for Building Inspectors: COVID-19
On March 17, the state Office of Public Safety and Inspections issued guidance for local building officials in the face of public building closures or public restrictions on entering public buildings. Accordingly, the guidance provides that "for situations involving building inspections for purposes of achieving compliance with the state building code, Sections 110.3, R110.3, 'the building official shall make the inspections within two business days after notification.' Should an inspector be dealing with restrictions from their employer, which impedes completing inspections as prescribed in the code, or have situations involving the property or other risky conditions related to COVID-19, the state building code does provide an alternative. The inspector has the authority to accept reports from an approved subject matter expert per building code sections 104.4 and R104.4. Utilizing subject matter experts, and the appropriateness as to the use of these provisions, in any situation, is at the inspector's discretion."
Professional Licenses Extended
On March 18, Governor Baker signed a new emergency order to ensure that licensed professionals do not have their licenses or registrations lapse due to unforeseen problems with renewal during the COVID-19 emergency. Specifically, under this order, occupational or professional licenses of individuals that are in good standing and that would otherwise be up for renewal during the COVID-19 emergency shall be extended for 90 days after the end of the public health emergency. This order does not affect license extensions that have already been granted in earlier emergency orders. See Emergency Order here.
Governor's Executive Order Suspends Portion of Open Meeting Law
On March 10, Gov. Charlie Baker issued an Executive Order suspending certain provisions of the open meeting law due to the ongoing COVID-19 public health emergency and concerns of public health professionals leading to the closure of public buildings. The order relieves state, quasi and local governments, such as local boards and commissions, from the requirement that meetings be conducted in a public place that is open and physically accessible to the public, provided that the public body makes provision to ensure public access to deliberations of the public body through so-called "adequate, alternative means" such as public access through telephone, internet, or satellite enabled audio or video conferencing or any other technology that enables the public to clearly follow the proceedings of the public body in real time. See the Governor's Press Release here and Executive Order here. While well-intentioned, municipalities have been left scrambling to develop these alternative means of providing public access through such platforms as Zoom or Go To Meeting, but it has also led to municipalities canceling meetings without continuing the meeting to a time, date, and place certain, it has left some applicants filing applications but concerned about the city or town meeting the statutory timeframe within which to hold a public hearing, with some municipalities suspending meetings for over a month, while other municipalities requiring applicants to waive deadlines and allow the city or town to not hold a hearing as far out as June 30. Arising from this concern from the municipal side is a potential slew of constructive approvals occurring as a result of municipalities missing deadlines due to the disruption of the Coronavirus Pandemic.
Home Builders & Remodelers Association of Massachusetts (HBRAMA) Drafting Corrective Measures on Permitting Due to COVID-19 Disruptions
As a result of the concern of municipalities, on the one hand, of constructive approvals of permits due to missed deadlines, and on the other hand, of the development community having its permit applications and approvals delayed or terminated, as a result of the Governor's March 10, 2020 Emergency Declaration due to the COVID-19 disruption, HBRAMA has been working with NAIOP as well as the Massachusetts Municipal Association on a proposal to the Administration for either a new Executive Order or legislative fix in an environment where permitting is already extremely difficult. These proposed changes may include the following:
- Prevents the expiration of any permit in effect or in existence during the period of the Emergency Declaration;
- Allows a board chair to schedule a hearing without a quorum, provided the hearing on a permit or approval is held within a reasonable time (the time period remains to be determined);
- Any permit hearing opened by a board prior to March 10, 2020, but not concluded or continued as of March 10, 2020, shall be automatically tolled and continued to the first hearing date following the expiration or rescission of the Emergency Declaration;
- Tolls, or suspends, the statutory requirement to hold a permit hearing within a specific period of time after the filing, for the duration of the Governor's Emergency Declaration;
- Building inspectors shall not withhold the issuance of certificates of occupancy as a result of conditions for such issuance contained in a permit, where such conditions cannot be satisfied as a result of the Emergency Declaration or because of impacts to the available workforce caused by COVID-19; and,
- If a permit is required to be recorded with the Registry of Deeds within a certain period of time after its issuance in order to remain in force and effect, the time period is suspended for the period the Registry is closed or does not accept permits for recording.
No doubt, some of these provisions may change, but the HBRAMA is working hard to ensure the integrity of the permit process, and to ensure that permits and permit processes remain valid notwithstanding the delays and closures caused by the Emergency Declaration.
Governor Issues Executive Order on March 20 Requiring Timely Issuance of Smoke Detector and Carbon Monoxide Certificates
In response to concerns raised by the HBRAMA about the inability to obtain smoke detector certificates from local fire departments that are needed to close on the sale of an existing house, the Governor, on March 20, 2020, issued an Executive Order allowing for a deferral of such inspection, provided that: (b) the buyer and seller agree the buyer shall be responsible for equipping the dwelling with smoke detectors and carbon monoxide alarms; (b) the buyer agrees to equip the dwelling with smoke detectors and carbon monoxide alarms immediately upon taking title to the property; and, (c) an inspection occurs within 90 days after the State of Emergency is terminated. A copy of the Executive Order and Memorandum for the State Fire Marshall are here.
HBRAMA Advocating For New Permit Extension Act
As a result of the delays arising from the Coronavirus Pandemic, it is unclear how long certain state and local permitting processes will be delayed or postponed. As a result, the HBRAMA is advocating for the adoption of a version of the Permit Extension Act enacted in Massachusetts during the financial crisis in 2010. The HBRAMA believes the current crisis warrants similar action by the Legislature or by Executive Order to extend the duration of permits and approvals in process or already granted for a period of 2 years. We will provide you with additional information as it becomes available.
Restricted Access and Hours For Certain State Agencies
On March 17, the Baker-Polito Administration issued new guidelines to Executive Branch employees and state agencies to ensure core state government functions are able to continue and key services be provided to residents during the COVID-19 outbreak. The new protocols, some of which restrict public access to public buildings, restrict hours, or curtail operations, became effective March 18, 2020 and will remain in effect until April 3, 2020, at which time they will be revisited. The operational status of each State Agency can be found at here.
Construction Moratoria Imposed in Boston, Cambridge, Nantucket; Other Municipalities May Follow Lead
On March 17, the City of Boston suspended most construction projects in an effort to stem the spread of the coronavirus. Boston became the first U.S. city to issue such a moratorium on March 17. The Boston ban is in place for at least two weeks. See City of Boston Guidance here. Following the Boston moratorium, the City of Cambridge has placed a moratorium on most construction in the city starting March 19. See Cambridge Order here. Developers and contractors will have until March 26 to secure their projects for the duration-which, for now, is indefinite. The moratorium exempts construction of one-, two-, and three-family houses already permitted, and does not cover emergency work or work essential for transportation or for safety-or for dealing with the coronavirus, including the construction of temporary shelters or health care facilities. The HBRAMA sees these types of moratoriums as a disturbing trend and is aware that other municipalities are contemplating this type of action, with varying types of exemptions.
MEPA Announces Temporary Procedures Due to COVID-19 On March 18, the MEPA Office announced new temporary filing and review procedures to remain in place until April 3, 2020, unless further extended. First, the MEPA Office will operate remotely and project submittals and other correspondence will continue to be accepted during this time. Second, electronic submittals that are sent to MEPA@mass.gov by 5:00 PM on the submittal deadline will be accepted for publication in the next edition of the Environmental Monitor. Third, all site visits will be conducted remotely until further notice. Fourth, remote pre-filing meetings may continue to be scheduled through emailing MEPA@mass.gov. More details can be found here.
Housing Court Place Suspends All Non-Emergency Eviction Cases
On March 14, the Massachusetts Housing Court placed a hold on all non-emergency eviction cases until April 21, 2020. However, a party may seek to advance its case, upon filing a motion with the court and by making a showing of good cause. The Housing Court also encourages parties to settle cases by out-of-court agreements. The court's order can be found here. In addition, the Lawrence City Council voted to approve a 60-day ban on evictions put forward by Mayor Rivera. While other cities and towns are likely to follow Lawrence in adopting similar moratoriums on evictions, Reps. Kevin Honan (D-Boston) and Michael Connolly (D-Cambridge) introduced legislation to create an emergency moratorium on evictions and foreclosures in Massachusetts during the COVID-19 Emergency Declaration. Read the text of the bill here.
Services Vary at Registry of Deeds
The services offered at the Registry of Deeds vary from county to county. The Real Estate Bar Association is posting the latest information at their website https://reba.net/about-us/registries-of-deeds-update/
Gov. Baker Signs Legislation Waiving One-Week Waiting Period for Unemployment Benefits
On March 19, Gov. Baker signed legislation to provide unemployment assistance to workers impacted by COVID-19. The law will allow new claims to be paid more quickly by waiving the one-week waiting period for unemployment benefits
Small Business Recovery Loan Fund
On March 15, the Baker-Polito Administration announced the creation of a $10 million loan fund to provide financial relief to Massachusetts businesses that have been affected by COVID-19. Massachusetts Growth Capital Corporation will receive and process all applications for this fund. More information and applications can be found here.
Division of Professional Licensure Limits Visitors to Boston Office
On March 20, the Division of Professional Licensure announced measures it was taking to reduce customer visits to its main office at 1000 Washington Street, Boston. DPL is asking individuals who do not have an immediate need for in-person services to delay their visit. You can find the announcement here, Customers are encouraged to visit the division's website at www.mass.gov/dpl for information on conducting various transactions with the agency and its boards and offices.