Land Use Law- October 2010

Permit Extension Act

Massachusetts state lawmakers gave final approval to the Permit Extension Act of 2010 on Saturday, July 31st , as part of an Economic Development Reorganization package (Senate Bill No. 2582).   The Act was signed into law by Governor Deval Patrick on August 5, 2010.  This new law is a benefit to all developers and individuals who obtained local or state permits (with some exceptions) between August 15, 2008 and August 15, 2010.  The Act automatically extends all permits in effect or existence during the stated tolling period for a period of two years beyond the approval expiration date.  

The Permit Extension Act will help residential, commercial and industrial projects that have already been reviewed and approved, but haven't moved forward due to market conditions and the lack of available financing. It will eliminate unnecessary delays and costs associated with reapplying for permits and provide increased predictability to developers, lenders and municipalities. The Act also avoids unnecessary review time by permit review boards on projects that might have, but for the economic climate, been moving ahead. 

Section 173 specifically defines “approval”, “development” and “tolling period” and excludes federally issued permits/approvals, Comprehensive permits issued under MGL Chapter 40B and MGL Chapter 131 Fish & Wildlife licenses.  Further, the Act does not prohibit a municipal, regional or state authority to modify or revoke an approval that specifically allows for such modification or approval.  The full text of the Act follows this Advisory.

SECTION 173. Notwithstanding any general or special law to the contrary, certain regulatory approvals are hereby extended as provided in this section.

(a) For purposes of this section, the following words shall, unless the context clearly requires otherwise, have the following meanings:

        “Approval” except as otherwise provided in subsection (b), any permit, certificate, order, excluding enforcement orders, license, certification, determination, exemption, variance, waiver, building permit, or other approval or determination of rights from any municipal, regional or state governmental entity, including any agency, department, commission, or other instrumentality of the municipal, regional or state governmental entity, concerning the use or development of real property, including certificates, licenses, certifications, determinations, exemptions, variances, waivers, building permits, or other approvals or determination of rights issued or made under chapter 21, chapter 21A excepting section 16, chapter 21D, sections 61 to 62H, inclusive, of chapter  30, chapters 30A, 40, 40A to 40C, inclusive, 40R, 41, 43D, section 21 of chapter 81, chapter 91, chapter 131, chapter 131A, chapter 143, sections 4 and 5 of chapter 249, or chapter 258, of the General Laws or chapter 665 of the acts of 2737 1956, or any local bylaw or ordinance.

        “Development”, division of a parcel of land into 2 or more parcels, the construction, reconstruction, conversion, structural alteration, relocation or enlargement of a building or other structure or facility, or any grading, soil removal or relocation, excavation or landfill or any use or change in the use of any building or other structure or land or extension of the use of land. 

        “Tolling period”, the period beginning August 15, 2008, and continuing through August 15, 2010.

(b) (1) Notwithstanding any general or special law to the contrary, an 2744 approval in effect or existence during the tolling period shall be extended for a period of 2 years, in addition to the lawful term of the approval.

        (2) Nothing in this section shall be deemed to extend or purport to extend:

            (i) a permit or approval issued by the government of the United States or an agency or instrumentality of the government of the United States or to a permit or approval, of which the duration of effect or the date or terms of its expiration are specified or determined by or under law or regulation of the federal government or any of its agencies or instrumentalities;

            (ii) a comprehensive permit issued by a board of appeals under sections 20 to 23, inclusive, of chapter 40B of the General Laws; or;

            (iii) a permit, license, privilege or approval issued by the division of fisheries and wildlife under chapter 131 for hunting, fishing or aquaculture.

        (3) Nothing in this section shall affect the ability of a municipal, regional or state governmental entity, including an agency, department, commission or other instrumentality of a municipal, regional or state governmental entity to revoke or modify a specific permit or approval or extension of a specific permit or approval under this section, when that specific permit or approval or the law or regulation under which the permit or approval was issued contains language authorizing the modification or revocation of the permit or approval.

        (4) In the event that an approval tolled under this section is based upon the connection to a sanitary sewer system, the approval’s extension shall be contingent upon the availability of sufficient capacity, on the part of the treatment facility, to accommodate the development whose approval has been extended. If sufficient capacity is not available, those permit holders whose approvals have been extended shall have priority with regard to the further allocation of gallonage over those approval  holders who have not received approval of a hookup prior to the effective date of this section. Priority regarding the distribution of further gallonage to a permit holder who has received the extension of an approval under this section shall be allocated in order of the granting of the original approval of the connection.

        (5) In the case when an owner or petitioner sells or otherwise transfers a property or project, in order for an approval to receive an extension, all commitments made by the original owner or petitioner under the terms of the permit must be upheld by the new owner or petitioner. If the new owner or petitioner does not meet or abide by those commitments then the approval shall not be extended under this section.

        (6) Nothing in this section shall be construed or implemented in such a way as to modify a requirement of law that is necessary to retain federal delegation to, or assumption by, the commonwealth of the authority to implement a federal law or program.

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