CLIENT ADVISORY: EXECUTIVE ORDER EXTENDS STATE PERMITS DURING COVID-19 EMERGENCY

Governor Charles D. Baker has issued an Executive Order suspending certain state permitting deadlines and extending the validity of other state permits due to the continued state of emergency that exists in the Commonwealth because of the coronavirus outbreak.

The Order, COVID-19 Order No. 17, affects a broadly-defined group of approvals (except enforcement orders) concerning the use and development of real property; the allocation or use of water or other natural resources; or the discharge, emission, abatement, or management of waste or pollutants, that are issued by state permitting authorities under the Executive Office of Energy and Environmental Affairs and the Executive Office of Housing and Economic Development. The Order specifically includes constructive approvals when a state permitting authority fails to act within a specified period of time; requirements that a hearing commence within a specified period of time; and requirements that a state permitting authority issue a decision or request a superseding order of determination within a specified period of time. The Order pauses the relevant time periods for the duration of the COVID-19 state of emergency and for 45 days after its termination, after which the time periods will begin to run again.

Additionally, the Order extends the deadline for filing an appeal of a decision by a state permitting authority if the time for filing the appeal would expire during the state of emergency. The deadline to file these appeals is now 45 days after the termination of the state of emergency. The Order also extends any permits valid as of March 10, 2020, that would have expired or lapsed during the state of emergency; the expiration date of these permits is tolled during the state of emergency (but not for an additional 45 day period).

Finally, the Order suspends the requirement for the Department of Environmental Protection to hold a public hearing for adopting its Intended Use Plan (IUP) for 2020. The DEP may adopt the IUP without a public hearing by publishing a draft IUP and accepting and considering public comments on it.

Previously, Governor Baker issued an executive order requiring all businesses and organizations not designated as “COVID-19 Essential Services” to close their physical workplaces and facilities to employees and the public. The Governor has urged non-essential state employees to remain home and work remotely and has closed many state administrative offices. This new Order explains that “such closures, while essential for public health, are expected to affect the ability of the Commonwealth and its agencies to timely process requests for licenses, permits, approvals, and certificates of registration” and that “the current public health crisis is preventing people and businesses from complying with the deadlines and conditions of permits, licenses, and other approvals issued or granted by the Commonwealth and its agencies.”

The Order, given at 7:05 PM on March 26, 2020, was made effective immediately and will remain in effect until it is rescinded or the COVID-19 state of emergency is terminated.

The full text of the Order is available at https://www.mass.gov/doc/march-26-2020-permit-extension-order/download. If you have a question about whether this Order covers your permit or approval, contact the attorneys at Mackie Shea Durning, PC.

Appeals Court Clarifies “Common Scheme” Restrictions

Earlier this month, the Appeals Court decided Berger v. 2 Wyndcliff, LLC, a dispute over conflicting interpretations of how to extend so called “common scheme” restrictions on land use.  G.L. c. 184, §. 27.  The restriction in this case originated in 1980 when a property owner executed an agreement of “protective covenants and easements” for the benefit of future owners in conjunction with subdividing her property.  The agreement restricted development (among other things, only one single-family dwelling was allowed per lot), and was to run with the land and bind the parties for 30 years from the date of recording.  These were common scheme restrictions that applied to four or more contiguous parcels.

Future owners later amended the agreement, with one amendment by two-thirds of the owners purportedly allowing extensions of the restrictions beyond 30 years.  Neighbors ultimately sued each other, disputing whether these restrictions were extended or had expired in 2010.  The Appeals Court held that, because the instrument originally creating the restriction did not allow extensions, any such amendment violated G.L. c. 184, § 27(b).  That law allows common scheme restrictions to be extended beyond 30 years for 20 years at a time under certain conditions, including that the imposing instrument allowed for extensions.  Other (non-common scheme) restrictions may be extended without regard to the language of the original instrument imposing the restriction.

In deciding an issue not reached by the Land Court below, this case highlights a difference between common scheme restrictions and non-common scheme restrictions.  The judge below had concluded that the amendments made the restrictions unlimited as to time and, thus, they expired 30 years from their creation.  See G.L. c. 184, §. 23. He did not reach the issue of whether these parties to common scheme restrictions had properly changed the restrictions’ duration.  In the seminal 2001 case Stop & Shop  v. Urstadt Biddle Properties, the SJC held that parties (two abutting commercial landowners) to a land use restriction agreement could remove a fifty-year prohibition on certain uses.  Removing the time limit made this restriction “unlimited as to time,” invoking G.L. c. 184, §23 and putting the property in a situation where the restriction expired in 30 years.  But that was not a common scheme restriction, to which we now know that slightly different rules apply.

This result is logical — common scheme restrictions apply to a group of neighbors, who may have had limited or no bargaining power when acquiring their properties.  The initial developer sets the common scheme restrictions, giving those coming into possession notice of the unique qualities and restrictions of the neighborhood.  In contrast, it is more equitable for two abutters (such as the owners of one burdened and one benefited parcel) to freely bargain for and enforce lengthy, non-common scheme land use restrictions.  As the Appeals Court stated, “the mechanism for the extension of restrictive covenants cannot be added by a later vote of less than one hundred percent of all property owners in the common scheme.”  It should be easier for two neighbors to agree on land use than it would be for the four or more neighbors in a common scheme.

For questions, call or email Gail Magenau Hire.