COVID-19 UPDATE: Municipalities Receive New Guidance for Project Review; Governor Baker Files Revised Budget Proposal; Eviction Moratorium Ending Oct. 17; Mayor Announces Housing Stability Pledge for Landlords

This week there were several actions taken regarding the state’s COVID-19 response.

NAIOP Advocacy Results in New Guidance, Proposed Legislative Fix

Chapter 53 of the Acts of 2020, An Act to Address Challenges Faced by Municipalities and State Authorities Resulting from COVID-19, was enacted in April to alleviate challenges faced by municipalities as a result of the COVID-19 public health emergency. NAIOP, together with the Massachusetts Municipal Association and the Home Builders and Remodelers of Massachusetts, worked to ensure that this legislation provided permit granting bodies with the authority they needed to conduct meetings and public hearings remotely.

Late last week, in response to concerns NAIOP and others have raised regarding certain municipalities’ reticence to restart public meetings, the Department of Housing and Community Development (DHCD) released official guidance for municipalities, urging them to conduct remote hearings on all applications for permits or approvals related to housing production, and reinforces that all remote hearings should be implemented in a fair manner for all types of housing, in particular referencing 40B projects.

Additionally, the Baker-Polito Administration has included language in their proposed supplemental budget to end all municipal hearing delays as allowed by Chapter 53 of the Acts of 2020 on December 1, 2020. This proposed legislation is a direct result of NAIOP’s advocacy, and we will continue to monitor the language as it moves through the supplemental budget process.

Governor Files Amended FY21 Budget

On October 14, Governor Baker filed a revised budget proposal for fiscal year 2021. The revised proposal includes over $100 million to support economic development and small business efforts as the Commonwealth continues to recover from the impacts of the COVID-19 pandemic. The Governor’s budget proposes a total of $45.5 billion in gross spending, and authorizes a withdrawal of up to $1.35 million from the Stabilization Fund. In order to avoid further burdening businesses and residents during the ongoing crisis, the Governor’s budget does not include any broad-based tax increases and he has signaled he will veto tax hikes if pursued by the Legislature. 

NAIOP is currently reviewing the Governor’s proposal and will be closely monitoring the budget process.

Eviction Moratorium to Expire – New Resources Announced

The Commonwealth’s eviction moratorium, which applies to residential tenants and small businesses, will expire on October 17. Earlier this week, the Baker-Polito Administration announced a comprehensive set of resources, known as the Eviction Diversion Initiative, to support residential tenants and property owners during the financial challenges caused by the COVID-19 pandemic. NAIOP is supportive of this comprehensive approach to working with owners and tenants to provide critical resources to ensure housing stability. 

The Administration is making a $171 million total commitment this fiscal year, with $112 million of new funding to support new and expanded housing stability programs during the remainder of the fiscal year. Learn more about these resources here.

Mayor Walsh Announces Housing Stability Pledge

Last week, Mayor Walsh announced the creation of the Housing Stability Pledge for landlords. The Pledge, aimed to deter residential evictions during the COVID-19 pandemic, requires landlords to abide by the current CDC Eviction Order; engage with tenants to create a payment plan; accept rental assistance where available; and make rent adjustments for Section 8/MRVP families who are falling behind on their rent. This is an opt-in program for residential landlords located within the City of Boston.

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. 

COVID-19 Update: Boston Announces Office Reopening Framework

Today, Mayor Marty Walsh announced a new framework for all office spaces located within Boston. Starting June 1, office spaces located within the City of Boston will be required to limit capacity to no more than 25 percent of the maximum occupancy level during phase 1. This framework is in place as an operational recommendation to be used as a reference in line with Federal and State-wide mandates.

These operational recommendations apply to operations during Phase 1 of the Commonwealth’s phased reopening plan, and are subject to revision and modification during subsequent phases or as necessitated by public health considerations. The City’s operational recommendations include, but are not limited to:

  • Identify and clearly communicate a workplace coordinator who will be responsible for COVID-19 and the impact to the workplace.
  • Providing personal protective gear for any employee whose job functions requires it, as identified in the hazard assessment, including training on how to put on and remove equipment safely.
  • Limiting the number of people in an elevator at a time to no more than four. All individuals must wear face coverings in elevators, except where unsafe due to medical condition or disability.
  • Stair usage should be limited to one direction (down) except in cases of emergency.
  • Regular sanitization of handrails, buttons, door handles and other high-touch frequency areas.
  • Establish accommodation and leave policies for employees that are consistent with federal standards.

We encourage all of our members and member-organizations to review the City’s framework. These operational recommendations incorporate the Commonwealth’s Sector Specific Workplace Safety Standards for Office Spaces and supplement them with recommendations based on guidance from the CDC, U.S. Chamber of Commerce, and industry associations to offer best practices for preparing and returning to the physical workplace, preparing your workforce, and ensuring continuity of operations. NAIOP presented to the City regarding Industry Best Practices and we are pleased to see that many of our recommendations have been incorporated into this guidance.

The Mayor has made it very clear that the City hope’s 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.

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.

Regulatory Reform – 10 Principles on Guidance

Recently, there has been much talk about the proliferation of regulations, both on a national and statewide basis.  President Obama mentioned it in his State of the Union speech and Governor Patrick referenced it in his Inauguration speech.

There is no doubt that there needs to be a serious review of many regulations at the state and federal levels.  Beyond traditional regulations, however, there is an area of “shadow” regulations that has been expanding through the state’s agencies – regulatory “guidance.”  NAIOP has been concerned for some time about the unlimited growth of guidance.  Guidance is taking on the power of statutes (which can only be enacted by the legislature and the Governor), and/or the authority of regulations (which must be promulgated by the agency under strict controls of the Administrative Procedures Act, including public hearing and provision for judicial review). The purpose of guidance should be to aid in the interpretation of previously existing rules and regulations; not to provide an alternative means to impose new rules without full notice and comment through “rule-making.”

Certainly, there is a place for appropriate guidance, so NAIOP would like to propose ten general principles to be followed when drafting and adopting regulatory guidance:

  1. Guidance should be issued to clarify the interpretation of existing rules and regulations.
  2. A second purpose would be to assist the agency in its review of applications and evaluation of a project’s ability to meet applicable performance standards.
  3. Guidance should be clear and user-friendly.
  4. Guidance documents should state expressly that they are for the purpose of “guidance only,” and that failure to follow guidance does not expose one to the denial of a permit application, penalties, or other sanctions.
  5. Under no circumstance should guidance expand the agency’s jurisdiction (subject matter or geographic) beyond that authorized by statute or regulation. 
  6. Guidance should be drafted with input from stakeholders. 
  7. Following internal and stakeholder review, the agency should submit the document for general public comment, allowing affected individuals to comment on the practical and procedural implications of the guidance.
  8. Agencies should add a three-year sunset clause to all guidance, after which it must either lapse or be reissued following an opportunity for stakeholder and public comment.
  9. All guidance should be clearly indexed and easily accessed on the agency’s web page.
  10. Guidance should be uniformly applied throughout all agency regional offices. Guidance should not be developed and issued by one region without the full support and backing of the entire agency.

In a recent blog, Seth Jaffe, a Partner at Foley Hoag, pointed out that this issue is clearly getting national attention with a recent court decision in National Mining Association v. Jackson.  The judge stated that EPA guidance was being treated as binding and that the guidance constituted “legislative rules because they seemingly have altered the permitting procedures under the Clean Water Act by changing the codified administrative review process.”  The Court found that EPA’s guidance exceeded its authority. 

Bottom line, to reduce the excessive cost of doing business in the Commonwealth, let’s make working on regulatory reform a priority. However, we must also make sure that we don’t offset those gains by piling on unnecessary guidance.