Aware of how economic conditions are affecting the real estate and construction sectors, in the final days of the legislative session the Massachusetts legislature enacted, and the Governor rapidly signed, the Permit Extension Act of 2010 (the "Act") as part of the broader Economic Development Bill.
The Act extends the expiration date of most state and local development-related approvals issued or in existence between August 15, 2008, and August 15, 2010 for two years from the date they would otherwise lapse. The Act covers zoning (including in Boston) and subdivision approvals, approvals issued under the Massachusetts Environmental Policy Act, most permits issued by the Department of Environmental Protection, including under Chapter 91 (the Public Waterfront Act), MassHighway access permits, permits issued by local conservation commissions under the Wetlands Protection Act, permits issued under the state Endangered Species Act, building permits, permits issued related to Smart Growth, permits for commercial Priority Development projects, and similar permits issued under any local by-law or ordinance.
The Act does not prevent a state or local body from modifying or revoking a permit or permit extension if otherwise authorized to do so under the law or regulation under which the permit was issued.
However, the list of permits and approvals extended is not exhaustive. Importantly, the Act does not cover Comprehensive Permits under Chapter 40B. It also does not cover approvals issued by the Massachusetts Historical Commission, permits issued under Chapter 21E (relating to the release of hazardous materials), permits issued by special state authorities such as the Massachusetts Water Resource Authority, permits related to storage of flammable fuels, and permits issued under various special statutes. It also would not appear to extend the “zoning freeze” implications of subdivision plan endorsements. It is therefore prudent to carefully review how the Act affects any particular development project.
The Act is intended to save project proponents the risk, delay and expense of reapplying for permits for approved development projects stalled due to the recession and credit crisis. By preventing the abandonment of such projects, the Act is intended to preserve jobs and prevent a waste of public and private resources. However, the Act was opposed by the Massachusetts Municipal Association primarily on the grounds that it would pre-empt local authority to grant permit extensions and to consider changes in circumstances.
For questions about the information contained in this advisory, please contact your usual Goulston & Storrs attorney or either of the following attorneys:
Matthew J. Kiefer
Marilyn L. Sticklor
This G&S Advisory was authored by Yuanshu Deng, Matthew Kiefer, and Marilyn Sticklor , members of the firm's Real Estate group.
This G&S Advisory should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer concerning your situation and any specific legal questions you may have.
Pursuant to IRS Circular 230, please be advised that, this communication is not intended to be, was not written to be and cannot be used by any taxpayer for the purpose of (i) avoiding penalties under U.S. federal tax law or (ii) promoting, marketing or recommending to another taxpayer any transaction or matter addressed herein.
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