June 16, 2021 Miyares and Harrington LLP Client Alert COVID-19 and Municipal Operations
The Governor’s declared state of emergency is now expired. Today, however, he signed into law Ch. 20 of the Acts of 2021, which extends certain provisions that municipalities and businesses embraced as positive attributes of operations regardless of the pandemic. The provisions of this Act which may be of most interest to municipalities are summarized below. Here is a link to the Act referenced in this Alert:
An Act Relative to Extending Certain COVID-19 Measures Adopted During the State of Emergency, Ch. 20 of the Acts of 2021, signed and effective June 16, 2021
Q. May our Town still hold Town Meeting remotely or decrease the quorum requirement?
A. Yes for now. The Act extends the provisions allowing Select Boards, in consultation with the Town Moderator, to downwardly adjust the number of voters required for a quorum at Town Meeting. It also provides that representative Town Meetings may be held remotely, at the request of the Moderator and approval of the Select Board, if the meeting cannot safely be held in person while complying with applicable state or local orders or guidance. These provisions will expire after December 15, 2021.
Q. May we hold other public meetings remotely?
A. Yes for now. The Act suspends the Open Meeting Law requirement that public bodies conduct meetings in open and physically accessible public spaces, provided they can ensure remote access free of charge to the public. If remote access is not feasible because of economic hardship, the town may instead post a transcript, except for meetings at which public participation is required. Public bodies must also ensure that any party entitled to appear at the meeting may appear remotely. Similarly, public bodies may allow remote participation by its members and quorum need not be physically present at the meeting location. These provisions are set to be repealed on April 1, 2022, when the Open Meeting Law’s ordinary requirements will once again control.
Note that this provision is retroactive to the state of emergency such that any potential violations between the expiration of the state of emergency on June 15th and today’s passing of the act are cured.
Q. Can restaurants continue to operate under their amended outdoor table service permits? Can we issue new permits?
A. Yes to both. Under COVID-19 emergency orders number 35 and 50, towns were entitled to approve permits and licenses for expanded outdoor dining and alcohol service on an expedited basis. From now until April 1, 2022, a town may approve a new request for expansion of outdoor table service, including in the description of licensed premises, or approve an extension of an earlier granted approval issued under orders 35 and 50. Select Boards must first establish the process for approving such requests, which does not need to comply with notice and publication provisions of M.G.L. c. 40A, § 11.
Similarly, local licensing authorities (LLAs) may grant approval for a change in the description of a licensed premises for the purpose of permitting outdoor alcohol service and issue an amended license to existing license holders without further review or approval by the state Alcoholic Beverages Control Commission. LLAs must only provide notice of approval of an amended license to ABCC. LLAs may extend an earlier granted approval under EOs 35/40 and may modify the terms of that approval.
Outdoor table service and amended licenses automatically revert back to their previous status on April 1, 2022. Those extended after originally being issued or amended under emergency orders 35 and 50 revert back to the status they held prior to the operation of the emergency orders.
Q. Can restaurants continue to serve alcoholic beverages to go?
A. Yes, although this also has a sunset provision. Takeout beer, wine, and cocktails may be sold until May 1, 2022, but must be sold at the same price for off-premises consumption as for on-premises consumption.
Q. Which Provisions Were Not Extended?
A. This Act only extends a limited number of the many acts and orders that were in place to assist the state through the pandemic. The above are the most likely to be pertinent to municipalities while other pertinent emergency measures, such as most local permitting relief, have not been extended.
Please contact us as further questions arise.
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