May 18, 2021 Miyares and Harrington LLP Client Alert COVID-19 and Municipal Operations
The Governor has announced rapid changes to the response to the COVID-19 pandemic in light of improvements in rates of infection and vaccination. This Alert highlights the most recent changes.
Here is a list of the Orders, Acts, and Guidance referenced in this Alert:
· May 17, 2021, Governor Accelerates Lifting Restrictions on Masks, Announces June 15, 2021 as Date of Termination of State of Emergency
· May 16, 2021, Centers for Disease Control and Prevention Guidance When You’ve Been Fully Vaccinated
Q. Does the End of the State of Emergency Mean No More Public Meetings from the Couch?
A. Probably yes. On March 12, 2020, Governor Baker signed an Executive Order suspending certain provisions of the Open Meeting Law. The Order permitted public bodies to meet remotely without a quorum being physically present and allowed the public to participate in public meetings through alternative means of access (i.e., zoom, conference call, etc). The Order will be rescinded on June 15, when the State of Emergency ends.
Practically speaking, this means that the "old" OML rules will apply. Remote participation by members of the public body will be allowed only in certain circumstances. Namely, the following conditions must be met:
(1) Remote participation has first been adopted by the Select Board, the City Council, or the Mayor, depending on the municipality;
(2) A quorum of the public body must be physically present at the meeting location;
(3) It would be unreasonably difficult for the member to attend remotely; and
(4) All members of a public body who participate remotely and all persons present at the meeting location must be clearly audible to each other.
At the start of any meeting, the chair must announce the name of any member who is participating remotely. The chair’s statement does not need to contain any detail about the reason for the member’s remote participation. Members who participate remotely may participate in executive sessions but must state at the start of any such session that no other person is present or able to hear the discussion at the remote location, unless the public body has approved the presence of that individual. All votes must be by roll call.
Starting June 15, the public body must allow the public to attend the meeting in person. In addition, if a public body chooses, it may allow the public body to participate remotely in a meeting.
Q. Can We Still Require Visitors to Public Buildings to Wear Masks?
A. Yes. While Governor Baker is lifting the mandate to wear masks as of May 29, he is adopting the latest guidance from the Centers for Disease Control and Prevention. The CDC provides that fully vaccinated individuals may resume pre-pandemic activities and behavior, it permits a more conservative local policy. The senior staff attorney for the Massachusetts Association of Health Boards confirmed today that Town Managers, Town Administrators, Boards of Selectmen, or Boards of Health each can adopt a policy requiring face masks. Such a policy does not require adoption by bylaw or regulation.
Q. Can We Still Permit Outdoor Dining and Alcohol Service?
A. Governor Baker’s announcement this week setting the end of the COVID-19 state of emergency for June 15 lends new urgency to preparations for resuming regular permitting and licensing procedures for restaurants. Laws offering temporary relief for restaurants are set to terminate along with the state of emergency or shortly thereafter, despite a popular push to make such relief permanent. Towns should be aware of the following deadlines relating to restaurant operations:
· Expanded outdoor table service expires August 14. COVID-19 Orders No. 35 and 50 allowed towns to approve restaurants for expanded outdoor table service, notwithstanding their regular permitting requirements. Towns could attach an expiration date to any approval issued under these orders, but under Order No. 50, all expansions which have not otherwise expired terminate automatically 60 days after the state of emergency lifts. As the state of emergency ends on June 15, expansions expire on August 14.
· Expanded outdoor service of liquor expires August 14. Under COVID-19 Orders No. 35 and 50, local licensing authorities could approve an amendment to the description of the licensed premises for on-site consumption in a liquor license to allow outdoor alcohol service. As with outdoor table service, any license amended under this section automatically reverts to the pre-amendment license on August 14, if no earlier date was designated by the town.
· Restaurants may not sell takeout beer, wine, and cocktails starting June 15. Chapter 53 of the Acts of 2020 allowed establishments which were licensed to sell alcohol on-premises to offer malt beverages and wine to go. Similarly, Chapter 118 of the Acts of 2020 allowed the sale of mixed drinks to go. Both acts are effective only for the duration of the state of emergency, and therefore terminate on June 15.
With these dates in mind, towns should notify any establishments who were granted expanded permissions under the state of emergency of the upcoming termination of these permissions.
Additionally, towns may wish to consider communicating with local establishments to determine which expansions may be continued via ordinary, pre-pandemic permitting and licensing processes.
Q. What is the Effect of the Termination of the Declared State of Emergency on the Permitting Relief Provided in Section 17 of Chapter 53 of the Acts of 2020, as Amended?
A. In response to the COVID-19 pandemic the Legislature passed St. 2020, c. 53, §17, later amended by St. 2020, c. 201, §33-38, which provided relief from certain filing and deadline requirements for permit applicants and permit holders (whether zoning or otherwise) during the Governor’s declared State of Emergency (“SOE”). With the end to the SOE slated for June 15, 2021, without further legislation, most of the permit-related relief will end.
“Permit,” as used in St. 2020, c. 53, §17(a), was defined broadly to include “a permit, variance, special permit, license, amendment, extension, or other approval issued by a permit granting authority pursuant to a statute, ordinance, bylaw, rule or regulation, whether ministerial or discretionary.”
Section 17(b), subsections (i) through (vii), of Chapter 53 of the Acts of 2020, as amended, provides the following specific relief “during the governor’s March 10, 2020 declaration of a state of emergency:”
As described above, the majority of relief provided under §17(b) will expire with the end of the SOE on June 15, 2021. The most notable exception to this is that for permits that were in effect or existence at the beginning of the SOE, the expiration or lapse period is tolled by a period of time equal to the duration of the SOE. The effect on permits in existence as of March 10, 2020 is to extend all deadlines for 462 days, so that such permits will not expire sooner than September 20, 2022.
The COVID-19 pandemic has certainly disrupted timelines for all manner of permit holders, and the specific effect on permit deadlines under §17(b)(iii) has not yet been tested. Further guidance from the State as the SOE comes to an end will likely help to clarify the Legislature’s intended application of this tolling period which, admittedly, seems to run longer than may be necessary.
Section 17(c) of Chapter 53 of the Acts of 2020, as amended, clarifies that a permit granting authority may, notwithstanding the protections afforded by the special legislation, “revoke or modify a permit if that permit or the law or regulation under which the permit was issued authorizes the modification or revocation thereof.” One provision of this subsection (c) that appears to survive the end of the SOE allows the extension of a permit for a reasonable length of time upon a showing of good cause and may be granted by the chair of a permit granting authority regardless of whether a quorum is present. Certain limitations of this subsection expired on December 1, 2020 but look out for further guidance.
Please contact us as further questions arise.
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