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State Urges Municipalities to Conduct Remote Hearings on Residential Development

By October 9, 2020 No Comments

In response to concerns raised by the HBRAMA that some municipalities were continuing to refuse to hold public hearings on applications for permits and approvals related to housing production during the COVID-19 state of emergency, the Massachusetts Department of Housing and Community Development (DHCD) recently issued a guidance document to all cities and towns urging them to conduct such hearings remotely.

On March 10, 2020, Governor Baker declared a state of emergency due to the outbreak of the 2019 Coronavirus (“COVID-19”). Under a series of executive orders, all businesses except those designated as essential businesses, such as residential construction, were required to close and all gatherings were limited in size to no more than 10 people. In response to gradual improvements in the public health data, the governor issued a series of subsequent orders allowing for a phased re-opening of workplaces and other facilities.

The HBRAMA worked with NAIOP Massachusetts, the Massachusetts Municipal Association and the Executive Office of Housing and Economic Development, in drafting and supporting the passage of Chapter 53 of the Acts of 2020. To reduce public gatherings at the start of the pandemic, that Act suspended any requirement that a municipal board had to conduct a public hearing on a permit application within a specific period of time. Importantly, it also provided that a permit granting authority may conduct meetings and public hearings remotely, consistent with the governor’s order of March 12, 2020 which suspended certain provisions of the Open Meeting Law.

Notwithstanding the obligation of local boards and commissions to hold public hearings on applications submitted to them, and the flexibility provided to them by both the executive order and Chapter 53, many builders and developers were reporting that hearings on their applications were being delayed until after the state of emergency is lifted. And in a few instances, zoning boards of appeals were refusing to hear petitions for comprehensive permits under Chapter 40B, the state’s affordable housing law, while continuing to hear applications for special permits for conventional housing.

In this regard, the memorandum from DHCD pointedly warns municipalities that public hearings must be held for all applications related to housing in a fair manner, consistent with state and federal fair housing laws and the state’s public health needs during the COVID-19 pandemic.

Since the state emergency was declared, most municipal governments in Massachusetts have initiated public hearings using remote online services (e.g., Zoom, Microsoft Teams, Go-To-Meeting) or held in-person meetings with social distancing for land use boards, town meetings, and city council hearings. Given that new housing production is a social justice, public health and economic imperative; the failure of local boards and commissions to conduct public hearings on permits and approvals for housing production is unconscionable.

A copy of the guidance document from DHCD to all municipalities in the Commonwealth can be found here.