Developers and permit holders should be aware that their permits may have been automatically extended courtesy of the “Third Permit Extension Act” – Chapter 238 of the Acts of 2024: “An Act Relative to Strengthening Massachusetts’ Economic Leadership” also known as the “Mass Leads Act.”
The legislature previously enacted permit extension acts in 2010 and 2012 in an attempt to address a slowdown in construction that followed the 2008 economic downturn. A permit extension was also granted during the COVID state of emergency. The 2024 Act is similar to the two prior acts in that it automatically extends permits and approvals for a set period, without requiring the permit-holder to take any affirmative action to confirm those extensions.
Specifically, Section 280 of the Mass Leads Act states that “an 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.”
“Approvals” are broadly defined to include (subject to certain exceptions), “any permit, certificate, order, excluding enforcement orders, license, certification, determination, exemption, variance, waiver, building permit . . . concerning the use or development of real property” that has been issued by municipal, regional or state governmental entities under land use and environmental laws, including, but not limited to the Wetlands Protection Act, the Waterways Act (Chapter 91), zoning (in all municipalities, including Boston), affordable housing (Chapter 40B), MEPA, and subdivision control law. Certain permits issued under Chapter 21E, addressing environmental remediation, are also included as are permits granted under a number of less-frequently used statutory schemes, such as the Starter Home Law (Chapter 40Y).
Enforcement Orders, however, are explicitly exempted and will not be extended. Similarly, federal permits and certain state-issued fishing, aquaculture and hunting licenses are not included in the list of extended permits. Additionally, a permit or approval can still be revoked or modified by the permit granting authority, if the permit or approval included language authorizing its modification or revocation.
The “tolling period” is defined as that period from January 1, 2023 to January 1, 2025, inclusive. Thus, any Approval which was in effect or in existence during that period is automatically extended for an additional two (2) years beyond the date it would otherwise expire. This is a significant benefit to project proponents who may be having difficulty obtaining financing or otherwise commencing their approved projects. Now they need not incur the additional cost to obtain an extension.
Permit holders should look closely at their permits to determine whether they were in effect during that time period and then compute the new permit expiration date. While the approval will be automatically renewed, we recommend communicating with the applicable authority about the automatic extension.
In a further boon to project proponents, the law provides that the tolling period reaches back to January 1, 2023, reviving expired permits. For example, a permit with a stated expiration date of January 1, 2024 will now expire on January 1, 2026, affording an applicant the opportunity to resuscitate an otherwise defunct project, without reapplication to the permit granting authority.
Finally, this version of the permit extension act, unlike the prior iterations, includes a “freeze.” It states that the approval shall be governed by the applicable local by-law or ordinance in effect at the time the approval was granted, unless the permit holder elects to waive this protection. While this freeze does not apply to state legislative schemes, it does provide a permit holder with a “freeze” on changes to municipal bylaws or ordnances, such as zoning and local wetlands protection bylaws. In other words, a permit holder can rely on the bylaw in effect as of the date their permit was originally issued throughout the extension period. Of course, if an amendment to the local ordinance works to the benefit of a project, the applicant could elect to be governed by the amended version and forego the freeze.
One additional component of the act that should be considered deals with projects which must connect to a municipal sanitary system. With respect to those projects, the extension is contingent upon the treatment facility having sufficient capacity to accommodate the project. If sufficient capacity is not present, the permit holder is to have priority over all other projects that obtained approval to connect to the sanitary system after November 20, 2024. Thus, an expired and revived project could leapfrog over another approved project that received approval to connect to the sanitary system in December 2024.
The act will also work to extend a permit if the property/permit has been sold to a new owner, provided all commitments made by the original owner or applicant under the terms of the extended approval have been assigned to and assumed by the new owner or applicant. That said, if the new owner or applicant fails to satisfy such commitments, the approval will not be extended.
For questions on the Permit Extension Acts, please contact Ann Sobolewski, or any other member of Prince Lobel’s Real Estate Group.
