The
Massachusetts Legislature has enacted a legal framework for municipal boards,
including conservation commissions, to receive
This
is important to everyone with business of any nature before local, regional and
state agencies, not just projects and permits, but also contracts, transactions
and other public and private matters.
The
legislation is Chapter 53 of the Acts of 2020, known as “An Act to Address
Challenges Faced by Municipalities and State Authorities Resulting from
Covid-19” (the “Act”). It is intended to
function in harmony with Governor Baker’s March 12, 2020 “Order Suspending
Certain Provisions of the Open Meeting Law, G.L.
c. 30A, § 20”.
Section
17 of the Act tolls (legalese for pauses) many of the timelines which would
typically govern a commission’s hearing and decision process. It generally provides that the “clock” for
calculating such timelines stopped on March 10, and will resume 45 days after
Governor Baker declares the state of emergency to be over. So, the clock is
stopped, to resume later.
Let’s
see how this affects, for instance, conservation commission business. The state Wetlands Protection Act (“WPA”)
requires that a hearing be opened within 21 days of receipt of a completed
application, known as the Notice of Intent.
The
Act relieves commissions of this obligation by providing that it “is suspended
as of March 10, 2020” and “shall resume 45 days after the termination of the
state of emergency, or by a date otherwise prescribed by law, whichever is
later”. Section 17(b)(2).
As
an illustration, if a Notice of Intent were filed on March 15, the 21-day deadline
in the WPA for the commission to open the hearing would not begin until 45 days
after the state of emergency ends (that is, the hearing must open within 66
days after the state of emergency is terminated).
The
Act provides similar but not identical relief to commissions for hearings that
had already begun before or on March 10.
Section 17(b)(vii) specifically says that:
a hearing on a pending application for a
permit opened by a permit granting authority prior to March 10, 2020, which has
either not been concluded as of March 10, 2020 or has been continued by the
permit granting authority as of March 10, 2020, shall be automatically tolled
and continued to the first hearing date of the permit granting authority
following the termination of the state of emergency, or to a date otherwise
prescribed by law, whichever is later; provided, however, that the date is no
later than 45 days from of [sic] the termination of the state of emergency or
the date otherwise prescribed by law, whichever is later.
In
other words, if a hearing were opened and continued prior to or on March 10, it
is paused by the new Act until the commission’s first meeting date after
the state of emergency ends, so long as that date is not more than 45 days
after the state of emergency is over.
This automatic continuation requires no action by the commission.
By
giving the commission longer to open a new hearing than to decide under a
hearing already started, the Act essentially gives priority to projects which were
already in the pipeline when the Governor issued his Emergency Order on March
10, over those filed after the Emergency Order went into effect.
While
these automatic extensions of time and continuances of hearings are very
important, it is equally important to note that the Act provides a framework
for those commissions wishing to conduct business during the state of emergency.
It explicitly allows commissions to hold
remote/virtual meetings and hearings, and issue decisions, with some leniency
on compliance with the Open Meeting Law.[2]
We
encourage local boards to use this legal authority continue with as much pending
and new business as they are equipped and comfortable to handle under the
circumstances. It is important to keep things moving along where possible and
practical for all sorts of reasons. There is a new reason: to avoid a mammoth
amount of work when the present emergency is lifted and suddenly all the meetings
and hearings must be resumed and concluded, and all the backed-up decisions
made and issued, within a relatively short time.
Specifically,
Section 17(d) provides that a commission “during the state of emergency, may
conduct meetings and public hearings remotely, consistent with the governor’s
order entitled ‘Order Suspending Certain Provisions of the Open Meeting Law,
G.L. c. 30A, § 20’.” All other
provisions of the Open Meeting Law and its regulations remain in effect.
Section
17(c) of the Act also allows commissions to amend or revoke permits previously
issued “subject to applicable notice and hearing requirements”, with
limitations to protect applicants who have not begun, or have suspended, work
due to the state of emergency.[3]
If
a commission does decide to conduct some scheduling during the state of
emergency, it may do so without needing to hear and decided all matters pending
before it as of March 10, 2020. Section
17(b)(v) of the Act provides that:
notwithstanding
the time periods by which a permit is to be either heard or acted upon, a
permit granting authority may, by a declaration of its chair, which the chair
is authorized to make irrespective of whether a quorum is present to vote on
such matter, schedule or reschedule on 1 or more occasions the hearing or
decision deadlines on a permit application provided no such date or deadline is
rescheduled for more than 45 days after the termination of the state of
emergency or after a date otherwise prescribed by law, whichever is later. The
chair shall provide written notice of any applicable rescheduled dates or
deadlines to the applicant at the applicant’s address, and to the general
public by posting electronically on the website of the city or town clerk or
the website of the county or regional entity.
In
other words, a commission’s Chair is empowered to unilaterally (that is, with
or without a quorum present) continue, schedule, or reschedule a hearing or
deadline for decision on particular matters.
Note
the process to use this authority: the new date or deadline may not be more
than 45 days after the state of emergency ends; the Chair must give written
notice to the applicant by mail; and the Chair must notify the public by
posting notice electronically on the city clerk or town clerk’s website (or,
for regional or county commissions, on the regional or county website, where
applicable).
Finally,
the Act specifically allows a commission to issue a decision on a pending
application. Section 17(e) states that “[n]othing
in this section shall preclude or prohibit a permit granting authority from
issuing decisions on permit applications for which duly held public hearings or
meetings have been held.”
In
summary, the Act allows a conservation commission to effectively cease its
deliberations and decision making without violating the laws or risking appeals
for inaction, first by suspending the obligation to open hearings for
applications until 45 days after the termination of the state of
emergency.
For
hearings that were opened and continued prior to March 10, the Act automatically
tolls resumption of the hearing until the commission’s first meeting date after
the state of emergency ends (so long as that date is not more than 45 days
after the state of emergency is over) even with no action by the conservation
commission.
The
Act also allows commissions to hold remote/virtual meetings and hearings, and
issue decisions, while empowering the Chair to unilaterally continue, schedule
or reschedule a hearing or deadline for decision on particular matters not more
than 45 days after the state of emergency ends (so long as the Chair mails
written notice to the applicant, and posts notice electronically).
Stay
tuned for more legal developments on this front as there is more municipal and
state agency relief legislation, gubernatorial executive orders, court orders,
and agency regulations and guidance.
Luke Legere, Esq,
is a member of REBA, active with its Environmental Law Section, and a partner
at McGregor
& Legere, PC, in Boston, where he handles environmental,
land use, energy, real estate, and related permitting, transactions,
enforcement, appeals, and litigation for industrial, commercial, governmental,
non-profit, and individual clients. Luke
can be contacted at llegere@mcgregorlaw.com.
[1] This article
addresses only the conduct of meetings and hearings under state law, although
the Act addresses additional matters of importance to commissions.
[2] The Act also
suspends the requirement for recording a commission’s decision at the Registry
of Deeds or Land Court while they are closed or prohibit in-person access by
the public during the state of emergency. Section
17(b)(vi).
[3] Section 17(c)
also provides that “a permit holder shall be entitled to a further extension of
reasonable length to exercise or otherwise commence work” under permit “at the
discretion of the [commission] for good cause shown” and empowers the
commission’s Chair to “grant such further extension irrespective of whether a
quorum is present to vote on the matter.”
