On May 17, the Baker-Polito Administration announced that Governor Baker will end the COVID-19 State of Emergency on June 15, 2021. That date will also serve as the end of the tolling period for certain state and local permitting approvals, which will re-start the clock running towards their expiration dates.
The state of emergency, first declared on March 10, 2020, has had wide-ranging effects on life in the Commonwealth. For development projects requiring state permits, the initial impact was a suspension of various deadlines relating to a broad range of approvals by state permitting agencies under the Governor’s COVID-19 Order No. 17, issued on March 26, 2020. These deadlines resumed under the Governor’s COVID-19 Order No. 42, issued on July 2, 2020, which rescinded Order No. 17 but extended the validity of certain state permits whose deadlines would have expired within the tolling period provided by Order No. 17.
Significantly, Order No. 42 also established a permit tolling period for the duration of the state of emergency for any approval issued by a state permitting agency valid as of March 10, 2020, and any deadline to record such an approval in order to establish its validity. These approvals “shall not lapse or otherwise expire during the state of emergency” and “the expiration date of the approval and the deadline to record said approval shall toll during the state of emergency.” Calculation of the new expiration and recording dates is tied to the end of the state of emergency:
Determine how many days remained as of March 10, 2020 until the approval or the deadline to record would have expired, and that same number of days will remain as of the date that the state of emergency is terminated.
For example, a Superseding Order of Conditions (“SOC”) issued by MassDEP under G.L. c. 131, § 40, on May 9, 2017, would still be valid for 60 days after the end of the state of emergency. Under MassDEP’s wetlands regulations, an SOC is valid for three years. In this example, the SOC would have expired on May 9, 2020, and thus it would have still been valid as of March 10, 2020. By operation of Order No. 42, it did not expire during the state of emergency and, since it had 60 days remaining on its term as of March 10, 2020, those 60 days will remain as of June 15, 2021, when the state of emergency ends.
In addition to the extension of state permits under the Governor’s emergency orders, the Legislature adopted an act to provide relief from local permitting deadlines during the COVID-19 state of emergency. Under Section 17(b)(iii) of Chapter 53 of the Acts of 2020, “a [local] permit in effect or existence as of March 10, 2020 … shall not lapse or otherwise expire and the expiration date of the permit … shall toll during the state of emergency.” Sections 17(b)(ii) & (iv) provide for a grace period of 45 days after the end of the state of emergency for the commencement of hearings required by statute or ordinance to be held within a certain period of time and for constructive approval or denial due to the permit granting authority’s failure to act on a permit. These deadlines will also start running again on June 15.
Per the May 17 Announcement, “the Administration will work with legislative and municipal partners during this period in order to manage an orderly transition from emergency measures adopted by executive order and special legislation during the period of the State of Emergency.”