COVID 19 Update: Eviction Legislation Before Senate, Clarity on Construction Moratoriums and Other Issues Affecting CRE

Construction Moratoriums and Guidance

In recent days, there has been a great deal of confusion over construction moratoriums at the state and local level. We hope the following summary, which reflects the latest information, provides some clarity.

State: On Tuesday, March 31, the Baker-Polito Administration updated the construction related guidance in response to the COVID-19 pandemic. The new guidance limits “essential” construction to housing and critical infrastructure activities. Under the revised list, private nonresidential construction is not considered essential (unless it falls within one of the specified exemptions). As of noon, April 1, only housing projects (including mixed use with housing, infrastructure projects and construction related to COVID-19 can proceed. On April 2, the state updated the FAQ page to answer questions on this issue. The state also issued supplemental guidelines to limit COVID-19 exposures on construction sites and additional guidance outlining the enforcement of COVID-19 safety guidelines. It specifically states that “for all private projects the primary enforcement responsibility rests with the city or town.”

Local: Boston, Somerville, Cambridge, and numerous other cities and towns have issued a halt to all construction until further notice. Companies should maintain the crews necessary to make sure sites are “safe and secure.”  On April 5, Mayor Walsh asked that even if a job is one of the few that is allowed to move forward under current guidelines, companies should consider shutting down. In addition, effective April 2, Cambridge issued its own construction guidance

Commercial and Residential Eviction Moratorium Legislation

On Thursday, April 2, the House passed H. 4615, An Act providing for a moratorium on evictions and foreclosures during the COVID-19 Emergency. The bill provides eviction moratoriums for both commercial and residential tenants. The bill is now before the Senate, where a vote is expected on April 9.

Property Tax Update

As part of Chapter 53 of the Acts of 2020, the municipal relief bill signed by Governor Baker on April 3, municipalities are allowed to extend the due date of quarterly taxes to June 1st.  
 
The City of Cambridge announced it is extending the due date for Second Half Real Estate and Property Tax bills until June 1, 2020. In addition, interest and other penalties on late payments made on Excise Tax and water/sewer bills with due dates after March 10, 2020 will be waived if payments are made before June 30, 2020. It is our understanding that this applies to both residential and commercial.
 
The City of Boston has extended the due date for property tax bills in Boston until June 1st to give residents more flexibility during the ongoing public health crisis caused by COVID-19. It is our understanding this only applies to residential.

BPDA Covid-19 Response

The BPDA is postponing all BPDA-hosted public meetings regarding Article 80 development projects and planning studies until further notice. While projects will continue to be reviewed internally by BPDA staff, the public review process for both Article 80 development projects and the BPDA’s planning studies is on hold until public meetings can be resumed. If you are a landlord or tenant of the BPDA’s housing program, please visit the BPDA’s housing page for information and resources. As the BPDA’s response to Covid-19 continues to evolve, please check this page or follow @bostonplans on Twitter for updated guidance.

COVID-19 Massachusetts Relief Fund

On April 6, Governor Charlie Baker and First Lady Lauren Baker announced the launch of the COVID-19 Massachusetts Relief Fund. It is designed to support organizations assisting Massachusetts’ most vulnerable residents, frontline health care workers, and other essential service providers.  Donations are needed and encouraged.
 

COVID 19 Update: Governor Signs Bill Tolling Local Permits and Other Issues Affecting CRE

Governor Signs Bill Tolling Municipal Permits

Today, Governor Baker signed H.4598, An Act to address challenges faced by municipalities and state authorities resulting from COVID-19. This bill addresses many challenges faced by local governments throughout the Commonwealth during this time and includes language that addresses the tolling of local permits and is supported by the Mass Municipal Association, NAIOP MA, and the Home Builders & Remodelers Association. The language, found in Section 17 provides necessary relief to cities and towns that, due to disruptions caused by the state of emergency, are unable to timely process and hear permitting applications. At the same time, these changes balance the needs of residents and developers by ensuring that their current permits are no impaired by the emergency declaration. 

House Passes Commercial and Residential Eviction Moratorium

On Thursday, April 2, the House passed H. 4615, An Act providing for a moratorium on evictions and foreclosures during the COVID-19 Emergency . The bill enacts eviction moratoriums for both commercial and residential tenants. The bill now moves to the Senate.

Small Business Administration Clarifies Paycheck Protection Program

Late yesterday, the Small Business Administration (SBA) issued an interim final rule that provides additional guidelines and requirements for its Paycheck Protection Program (PPP) aiding small businesses affected by the COVID-19 crisis. The interim rule provides increased clarity on several key issues. It specifies underwriting expectations and allows lenders to rely on borrower documentation for loan forgiveness without verification – if the borrower attests that it has accurately verified the payments for eligible costs. This provides increased protection for lenders should borrowers misrepresent information. Additionally, the guidance states that after seven weeks, lenders may request that SBA purchase the expected forgiveness amount of PPP loans. It also allows banks that are already certified as 7(a) lenders to begin approving loan applications with SBA delegated authority starting today, April 3.

Cambridge Issues Construction Guidance for Still-Active Sites

On the evening of April 2, the City of Cambridge released guidance for currently active construction sites. The guidance does not change the types of construction activities covered by the existing moratorium, issued on March 18. All contractors undertaking construction projects that have received approval from the Inspectional Services Department or the Department of Public Works to work during the Moratorium shall follow the City’s COVID-19 Construction Guidelines, and are strongly urged to review the Commonwealth’s COVID-19 Guidelines and Procedures for all Construction Sites and Workers. Inspectional Services or Public Works Departments may shut down job sites that are found to be in violation of the City’s COVID-19 Construction Guidelines.Additionally, larger construction sites may require more elaborate reports and worker training plans.

COVID-19 Update: FAQ on Construction Shutdown, Update on Federal Programs & Resources for CRE

Shutdown of Non-Essential Construction – FAQ Updated As we shared on Tuesday, the Baker-Polito Administration updated the construction related guidance in response to the COVID-19 pandemic. The new guidance limits “essential” construction to housing and critical infrastructure activities. Under the revised list, private nonresidential construction is not considered essential (unless it falls within one of the specified exemptions). As of noon, April 1, only housing projects (including mixed use with housing), infrastructure, public works projects and construction related to COVID-19 can proceed. The state understands the need to wind down and provide security at an uncompleted project. A minimal crew for security is permissible under the following categories of essential service: 1) Security staff to maintain building access control and physical security measures and 2) Workers to ensure continuity of building functions, including but not limited to security and environmental controls (e.g., HVAC). The state has updated the FAQ page to answer questions on this issue.
Legislative Update – Municipal Permit Tolling Bill Expected to be Passed in House & Senate Today H. 4598, An Act to address challenges faced by municipalities and state authorities resulting from COVID-19, which includes language that addresses the tolling of local permits and is supported by the Mass Municipal Association, NAIOP MA, and the Home Builders & Remodelers Association, is expected to be passed in the House and Senate today and, hopefully, signed by the Governor as soon as this weekend. When it is signed into law we will let you know. 
SJC Postpones Trials in MA Until May 4 Yesterday, the Supreme Judicial Court issued an order postponing all state trials to May 4, at the earliest. All civil and criminal trials which were scheduled to begin on or before May 1 will be delayed “unless the trial is a bench trial in a civil matter and may be conducted otherwise than in-person by agreement of the parties and of the court.” The offices of court clerks, registers, and recorders will continue to work. These duties include scheduling and facilitating hearings, issuing orders, answering questions from legal professionals and the public, and performing other necessary tasks. All business except the filing of pleadings and other documents will be done virtually.
CARES ACT – Resources for Small Businesses  The Paycheck Protection Program (PPP) is a loan program designed to provide a direct incentive for small businesses to keep workers on the payroll. Loans are up to $10M, with a 0.5% interest rate and a 2-year maturity; there are no payments for the first six months.  

Who can apply? Businesses, non-profits, Veterans organizations, Tribal concerns, sole proprietorships, self-employed individuals, and independent contractors, with 500 or fewer employees.

When can I apply? The Paycheck Protection Program will be available beginning on Friday, April 3rd. Applications must be submitted by June 30, 2020.

How do I apply? You can apply for the Paycheck Protection Program through any existing SBA 7(a) lender or through any participating federally insured depository institution, federally insured credit union, or Farm Credit institution. Ask your local lender if it is participating in the program.

What else should I know? The SBA will forgive loans if all employees are kept on the payroll for eight weeks and the money is used for payroll, rent, mortgage interest, or utilities. The program will be available retroactive from February 15, 2020, so employers can rehire their recently laid-off employees through June 30, 2020. Read more here.  

The Economic Injury Disaster Loan Advance is a Loan Advance of $10,000 that is available to applicants who have been approved for an Economic Injury Disaster Loan; it does not need to be repaid, so you can think of the Advance as a grant for business expenses.  

Who can apply? If you have applied or intend to apply to the Economic Injury Disaster Loan program, you can also apply for a Loan Advance.

When can I apply? The Loan Advance is available now.

How do I apply? Visit the SBA’s website to submit an application for the Economic Disaster Injury Loan and Loan Advance.

What else should I know? Please note that you should submit an application at the above link, even if you’ve previously submitted an EIDL application prior to the Loan Advance being available. Read more here.  

The SBA is also offering Debt Relief to small businesses. Under this relief, the SBA will pay the principal and interest for six months beginning March 27th, 2020 for qualifying new and current holders of 7(a) loans.

Who can apply? Businesses who already have a covered 7(a) SBA loan or receive a 7(a) SBA loan prior to September 27, 2020.

When can I apply? This relief is applied for covered loans beginning with payments due after March 27, 2020.

How do I apply? Reach out to your SBA lender to discuss how this debt relief applies to your SBA loan.

What else should I know? This debt relief is available only to 7(a) loans and not to loans made under the Paycheck Protection Program, 504 loans, or microloans. Read more here.   Two other Small Business Administration loan programs are also open: Economic Injury Disaster Loans are available through the SBA website; apply here. EIDL loans can be up to $2M, with interest rates of 3.75%, and are for businesses whose revenues were adversely impacted by the coronavirus outbreak. The Express Bridge Loan Program is available to businesses that have an existing business relationship with an SBA-approved lender; speak to your lender about accessing this option while you await a decision on long-term financing. 
Statement from Eversource on Services During COVID-19 Eversource wants to reassure the development community that we are currently well prepared to continue providing safe, reliable energy and essential services while also safeguarding the health and well-being of our employees and the communities we serve. Connecting new customers is considered an essential service, therefore, here at Eversource: Our Customer Service and Engineering teams are working remotely, taking orders and designing and engineering your project. In an effort to maximize safety, joint site meetings are suspended and replaced with conference calls and virtual meetings. Individual site visits will continue where necessary.Construction will continue where permitted by local cities and towns, and Eversource field crews will continue working on projects. However, outage requests are being evaluated on a case by case basis.Outdoor meter installs will continue. Indoor meter installs will be evaluated on a case by case basis.Eversource will continue to require any and all State and Municipal Inspection requirements to move forward with energizing your facility.   For more information Eversource’s response to the COVID-19 pandemic, please visit the Eversource website
Ongoing Blood Product Shortage & Need for Blood Donation Sites As you are aware, the COVID-19 virus has caused the cancellation of blood drives across the Commonwealth. There is an urgent need now for patients with chronic conditions and trauma, as well as ensuring an adequate blood and blood product supply going forward. The Governor has deemed “Blood and plasma donors and the employees of the organizations that operate and manage related activities” as an essential service. Donating is a necessity to supply the hospitals with the blood our neighbors require. Donating blood is safe and people should not hesitate to give. In addition, there is a need for community blood drive sites in the eastern part of the state. Identifying donation sites is vital to meet the demand as we go forward. Your local knowledge, suggestions of sites, and potential partners are crucial to meeting the needs of our neighbors who need blood and blood products. To schedule a new blood drive contact Bill Forsyth at (617) 699-3808 or at email William.Forsyth@redcross.org. Those who are healthy, feeling well and eligible to give blood or platelets, are urged to make an appointment to donate as soon as possible by using the Red Cross Blood Donor App, visiting RedCrossBlood.org or calling 1-800-RED CROSS (1-800-733-2767).

COVID 19 Update: Governor Limits Essential Construction to Housing & Infrastructure, Extends Non-Essential Business Closures

Today Governor Charlie Baker extended his emergency order to close non-essential businesses and his stay-at-home advisory until May 4. It requires all businesses and organizations that do not provide “COVID-19 Essential Services” to close their physical workplaces and facilities to workers, customers and the public.  In addition, the Administration also updated the “COVID-19 Essential Services” categories. Of interest to NAIOP members, the list of “essential” construction related activities was modified so that only construction related to housing (including mixed use with housing) and critical infrastructure are now considered “essential.”  

The revised construction-related activities list is as follows:

-Workers performing housing construction related activities, including construction of mixed-use projects that include housing, to ensure additional units can be made available to combat the Commonwealth’s existing housing supply shortage.

Workers supporting the construction of housing, including those supporting government functions related to the building and development process, such as inspections, permitting and plan review services that can be modified to protect the public health, including allowing qualified private third-party inspections accountable to government agencies.

-Workers such as plumbers, electricians, exterminators, builders, contractors, HVAC Technicians, landscapers, inspectors and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences, businesses and buildings such as hospitals, health care facilities, senior living facilities, and any temporary construction required to support COVID-19 response.

-Workers – including contracted vendors – who support the operation, inspection, maintenance and repair of essential public works facilities and operations, including roads and bridges, water and sewer, laboratories, fleet maintenance personnel, construction of critical or strategic infrastructure, traffic signal maintenance, emergency location services for buried utilities, and maintenance of digital systems infrastructure supporting public works operations. Critical or strategic infrastructure includes public works construction including construction of public schools, colleges and universities and construction of state facilities, including leased space, managed by the Division of Capital Asset Management; airport operations; water and sewer; gas, electrical, nuclear, oil refining and other critical energy services; roads and highways; public transportation; steam; solid waste and recycling collection and removal; and internet and telecommunications systems (including the provision of essential global, national, and local infrastructure for computing services).

-Workers who support infrastructure, such as by road and line clearing and utility relocation, to ensure the availability of and access to needed facilities, transportation, energy and communications.   The previous definition of construction workers was as follows: “

Construction Workers who support the construction, operation, inspection and maintenance of construction sites and construction projects (including housing construction)”.

COVID 19 Update: Permit Tolling Legislation Filed Today & FAQ on Essential Services

Permit Tolling Bill Filed Today
Today Governor Baker filed HD4974, An Act to Further Address Challenges Faced by Municipalities, School Districts, and State Authorities Resulting from COVID-19. While the bill addresses several topics, Section 9 of the bill addresses the tolling of permits. The language included in the bill is the result of a collaborative effort and many hours of work during the past few days between NAIOP Massachusetts, the Mass Municipal Association and the Home Builders & Remodelers Association of MA.   Specifically, the language provides the following:

– No permit is automatically granted, approved, or denied because a local permitting authority does not act within a time period required by law.
– Any permit that is currently valid will not lapse or expire during the state of emergency, and suspends any time limitation on such permits during the emergency.
– Allows applications for permits to be filed electronically, so as to eliminate the need for in-person filing.
– Suspends any requirement that a hearing on a permit application be held within a certain period of time until 45 days after the end of the state of emergency.  

These changes will provide necessary relief to cities and towns that, due to disruptions caused by the state of emergency, are unable to timely process and hear permitting applications. At the same time, these changes balance the needs of residents and developers by ensuring that their current permits are not impaired by the emergency. We are pushing for quick passage of this bill and we are incredibly grateful to a phenomenal team of NAIOP members who worked tirelessly to perfect this language and reach a compromise. We will keep you posted as this bill advances. In addition, we are pursuing numerous other forms of legislative and regulatory relief. Please contact us if you have any questions or ideas.  

Non-Essential vs. Essential Businesses: FAQ Now Available  
Yesterday Governor Charlie Baker issued an emergency order requiring all businesses and organizations that do not provide “COVID-19 Essential Services” to close their physical workplaces and facilities to workers, customers and the public as of Tuesday, March 24th at noon until Tuesday, April 7th at noon. These businesses are encouraged to continue operations remotely.  NAIOP has been inundated with requests from professionals who are not specifically listed. The Administration has launched an FAQ page to address some of the most commonly asked questions.  

In addition, if the function of your business is not listed as essential, but you believe that it is essential or it is an entity providing essential services or functions, you may request designation as an essential business. Requests by businesses to be designated an essential function should only be made if they are NOT covered by the guidance. To request designation as an essential business, please click here  Any questions can be directed to covid19.biz@mass.gov  

Construction Moratoriums Continue & Conflict with Executive Order?
Last night, Somerville ordered all construction projects to cease general operations, establish services necessary for in-use buildings to function, and make their sites safe to the general public by Friday, March 27.  Somerville now joins Boston, Cambridge, and numerous other cities and towns that have put construction moratoriums in place.

We have received numerous requests for clarification on how the Essential Services list, which lists as essential:  “Construction Workers who support the construction, operation, inspection, and maintenance of construction sites and construction projects (including housing construction)” and “Workers to ensure continuity of building functions, including local and state inspectors and administrative support of inspection services who are responsible for the inspection of elevators, escalators, lifts, buildings, plumbing and gas fitting, electrical work, and other safety related professional work”should be interpreted in communities where there is a construction moratorium.   

As of March 23, Mayor Walsh and the BPDA made it clear that they do not plan to lift the moratorium. However, given the sheer volume of questions on this issue and the confusion that exists, we have reached out to the Baker-Polito Administration for guidance on this issue.

E-Notary Legislation Filed
Massachusetts is one of only a handful of states that does not allow for e-notarization. On Friday, SD2882, An Act Relative to Remote Notarization During COVID-19 State of Emergency was filed to allow for e-notarization until 3 days after the emergency declaration is lifted. The Real Estate Bar Association has been the lead on this issue, but NAIOP is supportive of the legislation and will be advocating for its passage.

COVID-19 Update: Non-Essential Shutdown – What It Means for CRE

All Non-Essential Businesses to Cease In Person Operation, Stay at Home Advisory For Two Weeks
Today, Governor Charlie Baker issued an emergency order requiring all businesses and organizations that do not provide “COVID-19 Essential Services” to close their physical workplaces and facilities to workers, customers and the public as of Tuesday, March 24th at noon until Tuesday, April 7th at noon. These businesses are encouraged to continue operations remotely. The Baker-Polito Administration issued a list of designated businesses and other organizations that provide essential services and workforces related to COVID-19 that shall continue to operate brick and mortar facilities during this two-week time period. Last week, NAIOP, ICSC and GBREB issued this request in preparation for a such a situation.

We were, therefore, pleased to see that “Construction Workers who support the construction, operation, inspection, and maintenance of construction sites and construction projects (including housing construction)” are listed as essential. In addition, “Workers to ensure continuity of building functions, including local and state inspectors and administrative support of inspection services who are responsible for the inspection of elevators, escalators, lifts, buildings, plumbing and gas fitting, electrical work, and other safety related professional work” are also listed as essential. We are seeking clarity on what this means for communities that have shut down construction.  

E-Notary and Smoke & CO Detectors
Friday, after a letter was issued by NAIOP and several other groups, Governor Baker issued guidance on smoke and CO detector inspections to allow home sales to move forward. It allows the requirement to have smoke and CO detector certificates transferred from the seller to the buyer as long as both sides agree in writing. We expect the e-notary legislation to move soon.  

Permit Tolling
NAIOP has been working very closely with the Mass Municipal Association on language that addresses the tolling of permits during this time. We have been in constant contact with legislators and the Administration on this issue. Final language is expected to move soon. We are also pushing for a Permit Extension Act to address the significant number of projects affected by this.  

Donate Supplies to Help Fight COVID-19
The business community is working to support the Massachusetts Life Sciences Emergency Supply Hub to help coordinate efforts to try and bring additional supplies and resources to our state’s healthcare institutions so they can continue to test and treat patients with COVID-19.

NAIOP is asking our member companies to consider how they may be able to help, specifically in donating lab, testing, and diagnostics supplies, personal protection equipment (PPE), and medical and scientific expertise needed to combat COVID-19. Please fill out the following survey to let us know what you can donate: https://www.surveymonkey.com/r/TVP69NJ

NAIOP will continue to advocate for policies, Executive Orders and legislation that address how this public health crisis is affecting real estate and overall economic development. We are working on numerous initiatives. Please feel free to reach out to CEO Tamara Small or Government Affairs Associate Anastasia Nicolaou if you have any questions.