The Massachusetts Appeals Court ruled on May 7, 2025, that two building permits granted for construction of a biomass-fired power plant in Springfield, MA benefited from extensions granted by the several permit extension laws and did not forego the additional time due to lengthy litigation challenging their validity. The case is Palmer Renewable Energy, LLC v. Zoning Board of Appeals of Springfield.

Massachusetts law has long recognized the doctrine of litigation tolling for land use permits.  Under this doctrine, courts have applied equitable tolling when a permit has been challenged to avoid the futile situation of a permit holder not being able to exercise their rights under a permit if the litigation takes longer than or eats up any portion of the term of a permit. 

Certain statutes, such as the Zoning Act, codify equitable tolling to explicitly provide for tolling of the expiration date of a permit until litigation concludes. 

Regardless of whether a permit is challenged in court, for other reasons the Legislature in recent times has granted blanket extensions to a broad range of land use and environmental permits.  In 2010 legislation known as the Permit Extension Act, was enacted and then amended in 2012, resulting in permits in effect during the “qualifying period” between August 15, 2008, and August 15, 2012, being extended four years.  The Permit Extension Act was in response to the downturn in the state’s economy during the Great Recession around 2008. 

In response to the COVID-19 health emergency, the Legislature in 2020 enacted provisions tolling many of the same land use and environmental permits until the end of the Governor’s State of Emergency due to the COVID-19 pandemic. That State of Emergency lasted 462 days so permits that were in effect on March 10, 2020, were extended 462 days. 

Most recently, as part of an omnibus economic development bill, known as the Mass Leads Act, the Legislature included a provision to extend by two years many of the same type of land use permits if they were in effect at all during the period of January 1, 2023, to January 1, 2025. 

The Appeals Court in the Palmer case was asked to resolve the question of whether the extra four years provided by the Permit Extension Act ran from the date two building permits were issued while the permits were challenged in court, or whether the four years began the date the litigation concluded.  The decision holds that they run not concurrently but rather consecutively. 

The Springfield building commissioner on November 15, 2011, issued two building permits to Palmer to begin construction of a biomass-fired power plant. While no expiration date was stated on the face of the permits, the parties and courts treated the permits as having a 180-day term.  Within a month of the permits being issued, the Springfield City Council appealed to the Zoning Board of Appeals (“ZBA”). The ZBA voted on January 12, 2012, to revoke the building permits and filed its decision with the City Clerk on March 8, 2012. 

Palmer appealed the ZBA’s decision by filing a Complaint in the Land Court on March 26, 2021.  The Land Court on August 14, 2014, reversed the ZBA’s decision and reinstated the building permits.  The City and others appealed and, over a year later, on September 8, 2015, the Appeals Court affirmed the Land Court’s decision.  An application for further appeal was denied. 

Five years later, on October 14, 2020, twelve members of the City Council asked the building commissioner to issue a cease-and-desist order on Palmer’s construction on the grounds that the building permits had expired.  The request was denied and the City Council members appealed to the ZBA. On May 5, 2021, the ZBA voted to grant the relief and revoked the building permits and filed its decision 23 days later with the City Clerk.  Palmer appealed the ZBA’s decision in Land Court. 

In affirming the ZBA’s decision, the Land Court held that the extra time provided by the Permit Extension Act ran at the same time as that provided by the litigation tolling doctrine, concluding that the permits had expired May 13, 2016. 

In reversing the Land Court, the Appeals Court began its analysis recounting the several ways land use permits are extended by the doctrine of equitable tolling, automatic through statutory provisions, or following statutory or local procedures to request an extension. 

The Appeals Court then relied on the principle that when enacting a law, the Legislature is presumed to be aware of existing statutory and common law related to the subject it is legislating, so by starting extension provisions in the Permit Extension Act with the clause, “Notwithstanding any general or special law to the contrary”, the phrase “in addition to the lawful term of the approval” means that the four-year extension provided runs after, not concurrently with, any period provided by litigation tolling. 

The Appeals Court also was asked to decide what date is used to start the litigation tolling period.  Palmer asserted that it was when the City filed its appeal to the ZBA, 27 days after the building permits were issued.  The City maintained it was when the ZBA reached its decision and revoked them. Because of the dates involved, this was significant because depending on which date was used, the building permits could fall under the COVID-19 permit extension law and enjoy another extension. 

The Appeals Court decided that, in the context of this case where the City challenged a large and complex project by asserting it also needed a special permit, it sided with Palmer’s position. Adding the 153 days remaining on the building permits to the date when litigation finally ended on October 30, 2015, meant that the building permits expired March 31, 2016.  The Permit Extension Act extended these permits four years through March 31, 2020, thus affording the further extension under the COVID-19 permit extension law. 

While the facts and time periods in the Palmer case are complex and perhaps unique, the ruling is favorable to those holding state, regional or local land use and environmental permits. Equally, the decision should be noted by those administering or enforcing such permits as this case gives the permits longer life than may be expected. 

When using the words “notwithstanding any general or special law to the contrary” in special legislation extending such permits “in addition to the lawful term of the approval”, the additional time will be added to any other additional time afforded.  It does not run concurrently but rather consecutively with any other time periods granted under statutory provisions, litigation tolling, or granted extensions. 

Our other articles on the various Permit Extension acts may be seen at the following links:

— Third Real Estate Permit Extension Act Enacted in Massachusetts >

— McGregor Publishes Environmental Law Update 2024-2025 >