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Third Real Estate Permit Extension Act Enacted in Massachusetts Featured

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On November 20, 2024, Massachusetts Governor Maura Healey signed the “Act relative to strengthening Massachusetts’ economic leadership.” Also known as the “Mass Leads Act”, this comprehensive economic development bill includes provisions to again extend the life of many types of land use permits issued by municipal, regional, and state government.

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 latest 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 earlier, this act could revive permits that have expired.
 
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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). Unlike before, certain approvals granted under the state’s hazardous waste clean-up law, 21E, are included in the definition.
 


Enforcement orders are specifically exempt and thus not extended. Federal 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 look at each permit, determine whether it was in effect 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 to such needs or requests, 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. Some state agencies such as MassDEP are expected to issue guidance documents.

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.

 

Read 356 times Last modified onFriday, 06 December 2024 15:15
Nathaniel Stevens, Esq.

NATHANIEL STEVENS, Esq. is a Partner of McGregor Legere & Stevens PC. Since being admitted to the Massachusetts Bar in 1996, he has handled 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.

Mr. Stevens’ work includes state court litigation over land use permits and land ownership disputes, liability for property damage, insurance claims for environmental damage, cost-recovery for contamination cleanups, and damage to municipal lands and public natural resources. His permit-related and administrative litigation includes bringing and defending challenges to conservation commission permits for wetlands work, interpreting and enforcing conservation restrictions, and reviewing decisions by the Department of Environmental Protection (“MassDEP”). He handles adjudicatory proceedings in MassDEP, the Division of Administrative Law Appeals (“DALA”), the Energy Facilities Siting Board, and the U.S. Environmental Protection Agency (“EPA”).

In addition to litigation, Mr. Stevens has utilized dispute resolution and other problem-solving skills to efficiently and effectively achieve his clients’ goals. This includes working with land owners, land conservation organizations, and municipalities on a variety of permitting, land use, and management issues.

Mr. Stevens has conducted training through the Citizen Planner Training Collaborative (“CPTC”) for Planning Boards and Zoning Boards of Appeals on the Zoning Act and Subdivision Control Law. He has led Massachusetts Association of Conservation Commissions (“MACC”) workshops and training units for conservation commissions on the Wetlands Protection Act, Home Rule, the Open Meeting Law, and the Public Records Law.

Mr. Stevens has written for legal and environmental publications on subjects including wetlands protection law at the local and state level, quorum requirements for local boards and commissions, MassDEP regulatory reforms, Home Rule and preemption, EPA programs, and state Brownfields Law. His articles on changes to the Wetlands Protection Act and to the Permit Extension Act have been published by the Real Estate Bar Association, MACC, and the American Council of Engineering Companies of Massachusetts (“ACEC-MA”).

Mr. Stevens is a member of the American, Massachusetts, and Boston Bar Associations. He served as Co-chair of the Public Policy Committee of the BBA's Real Estate Section.

Mr. Stevens is a member of the Arlington Conservation Commission on which he served as Chair for many years. He served on the Board of Directors of the Arlington Land Trust, Inc., which promotes, raises funds, acquires, and manages conservation land and conservation restrictions within the Town. He served on the Executive Committee and the Board of Directors of the Lake Sunapee Protective Association, a New Hampshire member-supported nonprofit education and research watershed protection organization. He currently serves on the Board of Directors of MACC.

Prior to law school, Mr. Stevens was awarded a John Knauss Sea Grant Fellowship to study national marine policy in Washington, D.C. During and after this national fellowship, he worked on wetlands policy issues in EPA’s Wetlands Division.

Mr. Stevens is a graduate of Vassar College and Suffolk University Law School (cum laude), with a Masters of Science in Natural Resource Policy and Planning from the University of Michigan’s School of Natural Resources. In law school, Mr. Stevens was awarded “Best Brief” in the first-year Moot Court Competition and served as a member and editor on the Suffolk Transnational Law Review where he published an article on hydropower.

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