As a result of the real estate downturn in 2008, the state enacted very similar permit extension acts in 2010 and then again in 2012.
Like the first two, this latest act automatically extends by two years many but not all “approvals” concerning real estate use and development. As earlier, it extends such permits by operation of law, requiring no action by the permit holder or issuing authority. For that reason, there is no need for a document officially memorializing the extension. Also as earlier, this act could revive permits that have expired.
Specifically, Section 280 of Chapter 238 of the Acts of 2024 provides that “an approval in effect or existence” during the “tolling period” of January 1, 2023 to January 1, 2025, inclusive, shall be extended for a period of two years from its expiration date. Note that the granting of the approval does not have to occur during that period, rather the approval only has to be in effect during the tolling period, even for just one day.
Thus, expired permits might be revived. For example, a permit that had a stated expiration date of February 1, 2023 is now resurrected by this law by being extended, retroactively, two years. It now expires February 1, 2025.
Also, the two-year extension is automatic. There is no need for formalizing or memorializing the extra two years. That is, the holder of an approval, or permit, is not required to apply for an extension or confirm it.
An “approval” is broadly defined as “any permit, certificate, order, excluding enforcement orders, license, certification, determination, exemption, variance, waiver, building permit . . . concerning the use or development of real property” from municipal, regional or state governmental entities under specific laws, including, but not limited to those pertaining to wetlands protection, waterways, subdivision, and zoning and the relatively new Starter Home Law (Chapter 40Y). Like before, comprehensive permits granted under Chapter 40B are not extended. Unlike before, certain approvals granted under the state’s hazardous waste clean-up law, 21E, are included in the definition.
Enforcement orders are specifically exempt and thus not extended. Federal permits, “40B” comprehensive permits, and certain hunting, fishing and aquaculture licenses issued by the state also are not extended. These exclusions are consistent with the exclusions in the first two extension acts.
Unlike the first two extension acts, though, this one explicitly provides that any approval in effect during the tolling period shall be governed by the applicable by-law or ordinance in effect at the time the approval was granted, unless the holder of the approval elects to waive this protection. Interestingly, there is no similar provision for approvals by regional or state entities.
This third Permit Extension Act means that one should look at each permit, determine whether it was in effect at any point between January 1, 2023 and January 1, 2025, and, if so, determine its expiration date, and then add two years to calculate the new expiration date. Some careful permit holders in 2010 and 2012, however, wanted to have a confirmatory vote, email, or letter acknowledging that their permit qualified for the extension and stating the new expiration.
In response, some boards, agencies and officials like conservation commissions or their agents issued generic letters acknowledging the existence of a Permit Extension Act and stating its provisions. Others were willing upon request to issue a specific confirmation of a permit’s new expiration. A few were willing to issue a corrected permit with new expiration so it would be self-contained and could be recorded if desired.
Land use permit holders and their legal counsel will want to check which of their real estate use and development permits are now valid two years longer than they thought. Municipal, regional, and state permitting entities will dust off what they did in 2010 and 2012 to educate and assist permit holders and the public, in addition to noting the new expirations in their official records.
