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Tuesday, October 18, 2016

Municipal Modernization Act a Smorgasbord of Changes on Environment and Land Use


By Olympia Bowker

On August 9, 2016 Governor Baker approved HB 4565, “An Act Modernizing Municipal Finance and Government,” signing into law what is now Chapter 218 of the Acts of 2016. This newly enacted legislation tweaks, modifies, and streamlines several existing statutes governing cities and towns.

The statutes amended are many and varied, modifications that real estate attorneys and other professionals and their clients should know about. Here are select features of HB 4565, (“MMA”) with a focus on changes in municipal environmental and land use laws.

Local Agricultural Commissions are modified by three separate sections of the MMA. Section 23 of the MMA modified G.L. c 40 by adding § 8(L), which gives municipalities the explicit authority to establish a municipal agricultural commission, and further outlines the authority of such a commission. Section 215 of the MMA modified G.L. 111 § 31 to accommodate the existence of any subsequently created municipal agricultural commissions. Finally, Section 243 of the MMA garners the same authority established in G.L. c. 40 for new municipal agricultural commissions, to ones that predated the legislation.

Municipal Procurements are affected by sections 2-4, and 6-12 of the MMA. These changes increase the dollar threshold for contracts requiring less than full competitive bidding. Sections 2-4 of the MMA alter G.L. 30 § 39M by replacing subsection (a) with a new language that mandates all public construction valued at less than $10,000 be obtained through the sound business practices defined in G.L. c. 30B §2. In addition, contracts for construction that are above $10,000 must be awarded to the lowest eligible responsible bidder. The new § 39M  (a) also includes specifics regarding notice requirements, and blanket contracts.

Sections 6-12 of the MMA also alter the dollar threshold for contracts. G.L. 30 § 4 is modified so procurement for a supply or service for between $10,000 and $50,000 needs at least three written quotes from providers.

Prior to the MMA, under G.L. c. 30B § 5 (which governs competitive sealed bidding procedures) procurement contracts must have been valued at a minimum of $35,000 to fall under the listed procedures. The MMA altered this provision so the procurement contracts must be valued at least $50,000 to be required to conform to the competitive sealed bidding procedures set forth in G.L. c. 30B § 5. The MMA also altered G.L. c. 30B § 6, which now allows a chief procurement officer to enter into procurement contracts in the amount of $50,000 using competitive sealed proposals—a bump from the previous dollar threshold of $35,000.

A municipality’s ability to deny local licenses and permits to delinquent taxpayers has been altered by sections 37 and 38 of the MMA. Prior law allowed municipalities to deny local licenses and permits to taxpayers that had neglected or refused to pay taxes for at least one year. This new change allows municipalities to a mirror a “good standing” requirement, and removed the one year waiting period.

The MMA also alters G.L. c. 40 by adding a new § 60B. This new section allows adoption and implementation of a workforce housing special tax assessment (“WH-STA”) plan, to “encourage and facilitate incased development of middle income housing.” The new provision goes on to outline the applicability and prescribed parameters of such a plan.

The MMA also amends G.L. c. 59 § 5 by adding clause fifty-eighth, which mandates that taxes on property included in a WH-STA plan only be assessed to the portion of property not exempt under G.L. c. 40 § 60B.

The Municipal Affordable Housing Trust Fund Law, G.L. c 44 § 55C, is amended by the MMA so that G.L. c. 44B funds, from the Community Preservation Act (“CPA”), appropriated to local affordable housing trust funds are subject to the same restrictions as other CPA monies. In addition, at the end of each fiscal year the Municipal Affordable Housing Trust must ensure that all uses of 44B funds are reported to the community preservation committee so they are included in the CP-3 form to the department of revenue.

The newly enacted MMA also modifies Community Preservation Act surcharge exemptions in G.L. c. 44B § 3(e). In doing so, the MMA set a deadline for persons submitting applications for surcharge exemptions, which is the same deadline set under G.L. c. 59, §59.

G.L. c. 58, § 8C, which governs Affordable Housing and Real Estate Abatements, is modified to allow a municipality to establish an agreement regarding an abatement of up to 75% of the outstanding real estate tax obligations and up to 100% of the outstanding interest and costs on the sites.

The MMA imposes some interesting changes to G.L. c. 61A. The MMA created G.L. c. 61A, § 2A, which allows installation and operation of renewable energy on c. 61A land. However, there are several caveats for the location of the energy production, the amount of energy that can be produced, and the application of the energy produced.

In addition, G.L. c. 61A, § 13 was amended regarding the application of roll-back taxes, so they will now apply to agricultural land used or converted to renewable energy generation under the new § 2A.

The MMA also amends Section 276 of Chapter 165 of the Acts of 2014, to extend a special exemption from the annual gross sales requirement for cranberry bogs from 2017, to 2020. Essentially, the cranberry bog owners don’t have to meet minimum requirements for crop production and sales to maintain the tax benefits of c. 61A.

The amended statutory provisions listed above are just a sample of the many changes created by the MMA—the complete text can be found at https://malegislature.gov/Bills/189/House/H4565. Not all provisions of the MMA are effective simultaneously, so landowners, developers, lenders, investors and of course their attorneys should ascertain the timelines associated with the most noteworthy amendments.

Olympia Bowker is of Counsel at McGregor & Legere, P.C. in Boston, and works on a variety of environmental, land use, and real estate issues. She  received her J.D. and Masters of Environmental Law and Policy from Vermont Law School, and was admitted to the Massachusetts bar in 2015. She can be contacted by email at obowker@mcgregorlaw.com

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