Just prior to the Thanksgiving holiday, Governor Healey signed the “Act relative to strengthening Massachusetts’ economic leadership.” Also known as the Mass Leads
As a result of the real estate downturn in
2008, the state enacted very
similar permit extension acts in
2010 and then again in 2012.
Like the first two, this third act
automatically extends by two years many, but not all, “approvals” concerning real
estate use and development. As earlier, it extends such permits
by operation of law, requiring no action by the permit holder or issuing
authority. For that reason, there is no
need for a document officially memorializing the extension. Also as
in prior years, this act could revive permits that have expired.
Specifically, Section 280 of Chapter 238
of the Acts of 2024 provides that “an approval in effect or existence” during
the “tolling period” of January 1, 2023 to January 1, 2025,
inclusive, shall be extended for
a period of two years from its
expiration date. Note that the granting of the approval does not have to occur during
that period, rather the approval
only has to be in effect during the tolling period, even for just one day.
Thus, expired permits might be revived.
For example, a permit that had a stated expiration date of February 1,
2023 is now resurrected by this law by being extended, retroactively, two
years. It now expires February 1, 2025.
Also, the two-year extension is automatic.
There is no need for formalizing or memorializing the extra two years.
That is, the holder of an
approval, or permit, is not required to apply for an
extension or confirm it.
An “approval” is broadly defined as any
permit, certificate, order, excluding enforcement orders, license,
certification, determination, exemption, variance, waiver, building permit . . . concerning the use or
development of real property from municipal, regional or state governmental
entities under specific laws, including, but not limited to those pertaining to
wetlands protection, waterways, subdivision, and zoning and the relatively new Starter Home
Law (Chapter 40Y). As with the two prior extensions, comprehensive
permits granted under Chapter 40B are not extended. Unlike before,
certain approvals granted under the state’s hazardous waste clean-up law, Chapter
21E, are included in the definition.
Enforcement orders are specifically
exempt and thus not extended. Federal permits, “40B” comprehensive
permits, and certain hunting, fishing and aquaculture licenses issued by the
state also are not extended. These exclusions
are consistent with the exclusions in the first two extension acts.
Unlike the first two extension acts, though,
this one explicitly provides that any approval in effect during the tolling
period shall be governed by the applicable by-law or ordinance in effect at the
time the approval was granted, unless the holder of the approval elects to
waive this protection. Interestingly, there is no similar provision for
approvals by regional or state entities.
This third Permit Extension Act means that
one should review each permit, determine whether it was in effect during at any
point between January 1, 2023 and January 1, 2025, and, if so, determine its
expiration date, and then add two years to calculate the new expiration date.
Some careful permit holders in 2010 and 2012, however, wanted
to have a confirmatory vote, email, or letter acknowledging that their permit
qualified for the extension and stating the new expiration.
In response, some boards, agencies and
officials like conservation commissions or their agents issued generic letters acknowledging the
existence of a Permit Extension Act and stating its provisions. Others
were willing upon request to issue a specific confirmation of a permit’s new
expiration. A few were willing to issue a corrected permit with new expiration
so it would be self-contained and could be recorded if desired.
Land use permit holders and their legal
counsel will want to check which of their real estate use and development
permits are now valid two years longer than they thought. Municipal,
regional, and state permitting entities will dust off what they did in 2010 and
2012 to educate and assist permit holders and the public, in addition to noting
the new expirations in their official records.
Nathaniel
Stevens is a member of REBA’s Environmental and Renewable Energy Law Section
and partner in McGregor Legere & Stevens PC in Boston. He handles a broad range of environmental and
land use matters, from administrative law to litigation. He has helped a
diversity of clients with environmental issues including permitting, permit
appeals, development, contamination, transactions, conservation, real estate
restrictions, water supply, water pollution, subdivision control, tidelands
licensing, Boston and state zoning, coastal and inland wetlands, stormwater,
air pollution, and energy facility siting.
His email contact is NStevens@mcgregorlaw.com.
