|Today, as expected, the Baker-Polito Administration announced that it will be extending the current eviction moratorium by 60-days, using emergency powers granted by Chapter 65 of the Acts of 2020, An Act Providing for a Moratorium on Evictions and Foreclosures During the COVID-19 Emergency. This Act suspends most residential and small business commercial evictions, as well as residential foreclosures. It does not relieve tenants or homeowners of their obligation to pay rent or make mortgage payments. The extension will expire at 11:59pm on October 17, 2020. |
As reported on Friday, Massachusetts currently has the highest unemployment rate in the nation. In addition, the additional $600 available in federal unemployment benefits is expected to expire at the end of the month. Today’s announcement comes in the wake of the filing of House Docket 5166/Senate Bill 2831, An Act to Guarantee Housing Stability During the COVID-19 Emergency and Recovery, which seeks to institute a blanket eviction moratorium for 12-months beyond the end of the March 10 state of emergency that is currently still in effect. NAIOP has joined a coalition of real estate groups in strongly opposing this legislation. If enacted, HD 5166/SB 2831 would paralyze the real estate industry in Massachusetts by instituting rent control practices and rent cancellation, exposing good faith property owners to 93A damages, and sealing the records of all renters, not just those impacted by COVID-19.
NAIOP is in constant communication with the Administration and Legislative Leaders on this issue and we continue to work with a subcommittee of attorneys and owners on eviction policies and legislation. If you or a member of your firm would like to share your experience with this moratorium, please reach out to CEO Tamara Small or Government Affairs Associate Anastasia Nicolaou.
Governor Baker Announces Phase 3 Start Date
Today Governor Baker announced that Phase 3 will begin on Monday, July 6. While Phase 3 is anticipated to be in place until there is an effective treatment or vaccine for COVID-19, Governor Baker indicated that Phase 3 will be implemented in two steps.
Businesses allowed to reopen at this point in Phase 3 include but are not limited to:
- Fitness Centers and Health Clubs
- Museums and Aquariums
- Movie Theaters and Performance Halls (at limited capacity)
- Casinos (with additional minimum protocols set by the Massachusetts Gaming Commission)
Additionally, the Baker-Polito Administration has updated the guidance related to gatherings. The new guidance related to indoor gatherings will allow eight people per 1000SF, with a maximum of 25 people. Outdoor enclosed gatherings will be limited to 25% of the capacity, with a maximum of 100 people. This updated guidance will be effective Monday, July 6, except for the City of Boston, where it will be implemented Monday, July 13. For all guidance, orders and updates related to the Commonwealth’s reopening plan please visit: www.mass.gov/reopening
Governor Baker Amends State Permit Tolling Order
Importantly, this updated order addressed NAIOP’s significant concerns with the previous order’s appeals language. In the updated order, any individual whose right to appeal would have expired between March 10, 2020 and July 1, 2020 shall have until August 10, 2020 to proceed with their appeal. Any person whose right to appeal expires after July 1, 2020 will be held to the regular or statutory deadline, or by August 10, 2020, whichever is later.
NAIOP advocated strongly for this Executive Order given the extraordinary impact of the previous order on projects throughout the Commonwealth, and we were pleased to see our concerns addressed in the final language. A huge thank you to the NAIOP members who provided their expertise and insight throughout this process.
SJC Releases Updated Order Regarding Court Operations
On June 24, the Massachusetts Supreme Judicial Court (SJC) issued an order further staying certain hearings and trials and limiting court house access until at least July 13, 2020. In addition, the order affirmed that there will be no further extensions of deadlines or civil statutes of limitations beyond June 30, 2020, “unless there is a new surge in COVID-19 cases in the Commonwealth and the SJC determines a new or extended tolling period is needed) and that appeal periods on local permits will begin to run on July 1, 2020.
DPU Begins Energy Relief Plan for Commercial and Industrial Customers
On June 26, the Massachusetts Department of Public Utilities (DPU) approved the commencement of a program designed to assist companies that have fallen into arrears on gas or electricity payments during the COVID-19 pandemic. Full implementation of the program will begin after the March 10 State of Emergency is lifted and current customer protections expire. The Customer Outreach Plan will consist of four phases. You can read the full order by clicking here. Any company having trouble paying their electric or gas bills due to COVID-19 should contact their distribution company for further information.
MBTA Announces Five-Day Flex Pass Pilot for Commuter Rail mTicket
Yesterday, July 1, the MBTA began the new Five-day Flex Pass on mTicket pilot, a program designed to allow greater flexibility for commuter rail passengers as employers and employees explore staggered schedules and telework policies due to the COVID-19 pandemic. The pilot will take place from July 1 – September 30, 2020 and is only available within the mTicket app. Once purchased, the Flex Pass provides five one-day passes that can be used at any time in a 30-day period. This pass, available for all zones and interzones, is a 10% discount when compared to five round-trip tickets.
Today, the Baker-Polito Administration released its plan for reopening the Massachusetts Economy. Please visit mass.gov/reopening to review the full report, general business guidance, sector guidance, mandatory employer and worker posters, and FAQs on the 4-Phase Reopening Plan. In order to reopen, all businesses must develop a written COVID-19 Control Plan outlining how its workplace will prevent the spread of COVID-19.
Phase One will allow the following (with restrictions, some capacity limitations, staggered start):
- On May 18: Essential businesses; Manufacturing; Construction
- On May 25: Lab space; Office space (outside of Boston); Limited Personal Services (hair; pet grooming; car washes); Retail (remote fulfillment; curbside pick-up)
- On June 1: Office space in Boston
Each phase will last a minimum of three weeks and could last longer depending upon public-health data.
All Construction Included in Phase 1 Reopening Announcement
Governor Baker announced that effective today all construction (including office, retail, etc.) will be allowed to proceed if the appropriate documentation and safety standards and guidance are in place (in addition to any local requirements or restrictions).
In addition to the mandatory safety standards for all industries announced on May 11 regarding social distancing, hygiene, staffing and operations, and sanitization, the Baker-Polito Administration today released construction-specific mandatory safety standards and guidance. The requirements must be in place before reopening a site, and include but are not limited to:
- Keeping all crews a minimum of six feet apart at all times to eliminate the potential of cross-contamination
- No in-person meetings of more than 10 people
- Where social distancing is impossible, employers will be required to supply PPE including, as appropriate, a standard face covering, gloves and eye protection.
- The elimination of large gathering places on site such as shacks and break areas, allowing instead for small break areas with limited seating available to ensure social distancing.
- The designation of a site-specific COVID-19 Officer (who may also be the Health and Safety Officer) for every site except for construction and remodeling work in one to three family residences. This Officer shall certify that the contractor and all subcontractors are in full compliance with the COVID-19 safety requirements for construction.
The construction-specific requirements and guidance allows cities and towns to require additional site-specific risk analysis and safety plans.
Construction in the City of Boston
Also starting today, May 18, the City of Boston will allow a subset of construction projects on sites that meet specific criteria to commence (hospitals, public schools, 1-3 unit residential buildings, road and utility work or other outdoor/open-air work such as steel erection). On May 26, all construction projects in Boston may re-commence construction, if the construction site has submitted a COVID-19 Safety Plan and a COVID-19 Safety Affidavit in accordance with the City’s Temporary Guidance for Construction.
Office Space Reopening
Starting May 25, the Administration will allow office space to reopen at 25% of capacity, except in the City of Boston, which will allow office space to reopen on June 1. NAIOP has been in talks with the City and we will keep members posted if any additional standards for offices are released. The Baker-Polito Administration has released guidance for office spaces ahead of the May 25 date so that companies are able to review and plan for reopening. The guidance released includes a COVID-19 checklist and mandatory sector-specific safety standards.
The Administration has made it very clear that they hope employees who can work from home continue to do so throughout this recovery in order to limit potential exposure and allow for a successful and resilient reopening.
The MBTA has remained open throughout this public health crisis, and will continue to provide service as adjusted to prioritize essential travel for healthcare and emergency workers. All riders and employees are required to wear face coverings while riding public transit. Stations and vehicles will continue to be cleaned and sanitized with increased frequency, and customers should board at the rear doors of buses and street-level trolley stops. Seniors and individuals with disabilities may still board at the front door if needed.
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.
By Tamara Small
This column first appeared in Banker and Tradesman on Apr 5, 2020
Uncharted territory. Those are the two words that seem to be used when anyone tries to describe our current COVID-19 world. Children are out of school, entire economic sectors have been decimated, the global and local economy is in freefall – and the end is unknown.
As the unemployment numbers skyrocket and the number of people infected with COVID-19 continues to grow, it is difficult to find any positive news. However, here at NAIOP we’ve seen several local examples that we should all acknowledge and applaud.
Public– and Private–Sector Collaboration
In Massachusetts, this pandemic is exposing the grace of who we are, as residents and businesses stand strong in the fight to save lives. We see this with the establishment of the Massachusetts Life Sciences Emergency Supply Hub. As it quickly became clear that demand was outpacing supply at many healthcare institutions, the private sector stepped up.
The Massachusetts Biotech Council, Massachusetts Health & Hospital Association, Conference of Boston Teaching Hospitals and Massachusetts Medical Device Industry Council came together, launching the Supply Hub to bring additional supplies and resources to our state’s healthcare institutions so they could continue to test and treat patients with COVID-19 safely.
In response to the call for donations, hundreds of companies from a wide range of sectors including janitorial companies, colleges, and construction firms stepped up to donate everything from masks and goggles to swabs and tubes. While we still have not caught up with demand, this effort made a dramatic impact and provided a streamlined way for businesses throughout the commonwealth to supplement the local and national supply chain.
In another extraordinary example of community solidarity, the Boston Society of Architects has begun soliciting nominations for buildings, facilities or infrastructure that may be adapted to become alternative hospital sites. The Massachusetts Department of Public Health has issued guidance to permit the use of alternative, acute inpatient care spaces to care for patients during this public health emergency. Working with cross disciple teams, the architecture, engineering and construction community is working with property owners to assist state government officials with identifying, evaluating, documenting, and retrofitting buildings or other facilities identified as viable hospital facilities. Preparing for the worst is an essential part of crisis planning – this work will save lives.
The closure of non-essential businesses and the shutdown of most aspects of society have resulted in the need for executive orders and emergency legislation on a wide range of issues. Municipal governments have been particularly challenged since town halls are shuttered, Town Meetings are delayed, and annual budgets are uncertain at best. For real estate developers, navigating the permitting maze at the local level became more challenging as the permit application process, deadlines, and hearings became unclear.
Responding to this new challenge, the Massachusetts Municipal Association, The Home Builders & Remodelers Association of MA and NAIOP Massachusetts – The Commercial Real Estate Development Association, worked together, drafting language that gave predictability and protections to municipalities and developers. As of this writing, the language, which is included in An Act to Address Challenges Faced by Municipalities and State Authorities Resulting from COVID-19, was passed by the House and Senate and is expected to be signed by Gov. Charlie Baker.
Every day is a step forward, navigating a difficult path. As Massachusetts, and the world, continue to operate in today’s reality, it is important to remember that we are all in this together.
This legislation provides necessary relief to cities and towns that, due to disruptions caused by the state of emergency, are struggling to process and hear permitting applications. At the same time, the bill balances the needs of residents and developers by ensuring that current permits are not impaired by the emergency declaration. No town or developer wants to see a project that has received local approvals become a blighted, abandoned site, and this language ensures that projects can get up and going as soon as this crisis ends.
Examples of Leadership
Finally, Gov. Baker, Boston Mayor Marty Walsh, legislators and all the hardworking staff who support them must be recognized. They have focused on protecting the most at-risk residents, addressed business, health and public safety challenges and provided comfort during this unprecedented time.
Throughout the commonwealth, we have seen local community leaders follow this example. From local food banks to neighborhood groups, we have seen unprecedented kindness and grace as everyone works together to flatten the curve and save lives. Restaurants are providing free meals for students in need, essential grocery store workers are keeping our food systems open and, last but certainly not least, every person working in the health care sector is working tirelessly to save lives.
Every day is a step forward, navigating a difficult path. As Massachusetts, and the world, continue to operate in today’s reality, it is important to remember that we are all in this together. As a former governor of Massachusetts once said, let our first instinct be kindness – and as Mayor Walsh said during his address to the city, there’s nothing we can’t do when we stand together.
|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)”.
|Today Governor Baker issued an Executive Order to suspend relevant permitting deadlines and extend out the validity of state permits. It applies to a wide range of state approvals and clarifies that all approvals shall toll during the State of Emergency. It shall remain in effect until rescinded or until the state of emergency is terminated, whichever happens first. |
NAIOP is extremely grateful to the Baker-Polito Administration for recognizing the need for this language during these uncertain times.
Language dealing with municipal approvals, which is supported by NAIOP and the Mass Municipal Association, is addressed in H.4586, which we urge the legislature to advance to ensure predictability for both municipalities and developers.
|Today, March 25, Governor Baker issued guidance clarifying that the March 23, 2020 Order “Assuring Continued Operation of Essential Services in the Commonwealth, Closing Certain Workplaces, and Prohibiting Gatherings of More than 10 People” supersedes and makes inoperative any order or rule issued by a municipality that will or might in any way impede or interfere with the achievement of the objectives of this order. “Construction Workers who support the construction, operation, inspection and maintenance of construction sites and construction projects” are deemed essential.|
Therefore, “the Order provides that all construction projects are to continue operations during the state of emergency, but to do so with allowance for social distancing protocols consistent with guidance provided by the Department of Public Health. Local policies, regulations or directives that provide otherwise are in direct conflict with the Order and should be withdrawn.”
NAIOP had urged the Administration to issue guidance given the lack of uniformity across the Commonwealth on this issue and we are grateful for this clarity.
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.
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.
On May 14, NAIOP’s CEO Tamara Small testified before the Joint Committee on Housing in support of H.3507, An Act to Promote Housing Choices. If passed, the bill would enable cities and towns to adopt certain zoning best practices related to housing development by a simple majority vote, rather than the current two-thirds supermajority.
Small testified on a panel with representatives from a coalition of groups responsible for permitting and building housing throughout the Commonwealth including Jon Robertson, Legislative Director at the Mass Municipal Association; Benjamin Fierro III, Counsel to the Home Builders and Remodelers Association of MA; Greg Vasil, CEO of the Greater Boston Real Estate Board; Robert Brennan, President of CapeBuilt Development; and Kathleen Franco, CEO of Trinity Management. The group expressed their strong support for the bill, which would make it easier for communities to enact local zoning changes that encourage housing development.
In her testimony, Small underscored the importance of partnerships between developers and the communities. “Any successful housing development requires a partnership between the developer and the community to ensure that the project addresses local needs,” said Small. “The legislation preserves that partnership by requiring a majority vote, while making it easier for communities to rezone property to encourage more housing production.”
Throughout the hearing, mayors, housing advocates, and business leaders, including Mayor Kim Driscoll of Salem, Mayor Joseph Curtatone of Somerville, the Metropolitan Area Planning Council, the Smart Growth Alliance, CHAPA, and the Massachusetts Business Roundtable testified in support of the bill and called on the Joint Committee to report H. 3507 out favorably.
NAIOP will continue to advocate for passage of the bill as soon as possible. Because communities enact zoning changes at annual Town Meetings, quick passage of this bill is needed to ensure that implementation of these important reforms is not delayed another cycle.