October 2020

In response to concerns raised by HBRAMA that some municipalities were continuing to refuse to hold public hearings on applications for permits and approvals related to housing production during the COVID-19 state of emergency, the Massachusetts Department of Housing and Community Development (DHCD) recently issued a guidance document to all cities and towns urging them to conduct such hearings remotely.

On March 10, 2020, Governor Baker declared a state of emergency due to the outbreak of the 2019 Coronavirus. Under a series of executive orders, all businesses except those designated as essential businesses, such as residential construction, were required to close and all gatherings were limited in size to no more than 10 people. In response to gradual improvements in the public health data, the governor issued a series of subsequent orders allowing for a phased re-opening of workplaces and other facilities.

HBRAMA worked with NAIOP Massachusetts, the Massachusetts Municipal Association and the Executive Office of Housing and Economic Development, in drafting and supporting the passage of Chapter 53 of the Acts of 2020. To reduce public gatherings at the start of the pandemic, that Act suspended any requirement that a municipal board had to conduct a public hearing on a permit application within a specific period of time. It also provided that a permit granting authority may conduct meetings and public hearings remotely, consistent with the governor’s order of March 12, 2020 which suspended certain provisions of the Open Meeting Law.

Notwithstanding the obligation of local boards and commissions to hold public hearings on applications submitted to them, and the flexibility provided to them by both the executive order and Chapter 53, many builders and developers were reporting that hearings on their applications were being delayed until after the state of emergency is lifted. And in a few instances, zoning boards of appeals were refusing to hear petitions for comprehensive permits under Chapter 40B, the state’s affordable housing law, while continuing to hear applications for special permits for conventional housing.

The memorandum from DHCD pointedly warns municipalities that public hearings must be held for all applications related to housing in a fair manner, consistent with state and federal fair housing laws and the state's public health needs during the COVID-19 pandemic.

Since the state emergency was declared, most municipalities have initiated public hearings using remote online services (e.g., Zoom, Microsoft Teams, Go-To-Meeting) or held in-person meetings with social distancing for land use boards, town meetings, and city council hearings. Given that housing production is a social justice, public health and economic imperative, the failure of local boards and commissions to conduct public hearings on permits and approvals for housing production is unconscionable.

A copy of the guidance document from DHCD can be found here.

Thanks to the opposition of HBRAMA and business groups across the state, the Legislature ordered two bills to “study” that would have imposed costly mandates on all employers who provide “COVID-19 Essential Services” such as homebuilders and remodelers.

House Bill No. 4745, An Act providing hazard pay for essential workers in the COVID-19 Emergency, sought to require employers whose services are “COIVD-19 Essential Services” to pay their employees “hazard pay” to be calculated as one and a half times the employee’s actual earnings for any day they were required to work. This mandate would have been retroactive to March 23, 2020.

House Bill No. 4740, An Act relative to emergency health benefits for essential employees, would have required any “essential employer” that requires an “essential employee” to report to work, to perform out-of-home duties to provide emergency health hazard benefits to each essential employee, regardless of how long the employee has been employed.

House Bill No. 4740 would also have provided that any employee who contracts, has symptoms of, or otherwise becomes infected with COVID-19, have their medical condition or incapacity to work presumed to be work-related. This presumption would have had a huge detrimental impact on workers compensation rates in the future and added significant costs to most businesses.

By sending the bills to a “study,” the Legislature effectively killed them for the remainder of the legislative session.

As the state eviction moratorium was set to expire on October 17, Governor Baker announced the Eviction Diversion Initiative, committing $171 million of state funding for efforts to prevent evictions as tenants and property owners face financial hardships due to COVID-19. The federal eviction moratorium, that has fewer protections and allows eviction processes to move forward, took effect as the state moratorium expired and will be in place through December 31. The initiative provides much needed resources to help thousands of households pay the rent and mortgage to keep residents and property owners stable for the next few months.

More information about the Eviction Diversion Initiative and resource materials for both tenants and landlords can be found here.

HBRAMA Executive Committee member Jeffrey Brem and Guy Webb, Executive Director of the Home Builders & Remodelers Association of Western Massachusetts, participated in the online Stakeholder Group Meeting convened by MassDEP on Oct. 8 regarding its consideration of sweeping changes to its Title 5 and Groundwater Discharge Permit Program. Aspects of the revisions discussed at the meeting included expansions to the definition of “Nitrogen Sensitive Areas,” enhanced nitrogen removal requirements and load restrictions in such Areas; reconsideration of Title 5 design flows for multi-family residences; potential reductions in groundwater separation for the construction of new Title 5 systems achieving pathogen removal through the use of innovative or alternative technologies. Recognizing the significance to our members of these and other Title 5 issues, HBRAMA will continue to voice the concerns of homebuilders to MassDEP and will be providing a further detailed report in the coming weeks.

An amendment to the Town of Ipswich Zoning Bylaw that would have required that if a residential development obtains a special permit, waiver or other local approval that increases the density or intensity of use beyond what is allowed by right, the dwellings in the development must be net zero ready buildings, failed to gather the required 2/3rds vote needed for adoption at an October 17 Town Meeting.

The proposed bylaw defined a net zero ready building as “a building that

Frustrated in its attempt to force the developer of a single-family subdivision approved under the town’s cluster bylaw to agree to forgo the use of propane fuel in favor of heat pumps, the Planning Board sponsored the so-called “energy efficiency” bylaw. The stated purposes of the bylaw were to “aggressively reduce the use of fossil fuels and actively adopt renewable energy sources.”

Climate change activists have been lobbying the State Board of Building Regulations and Standards to amend the State Building Code to mandate electric vehicle charging in all newly constructed homes, in addition to advocating for the adoption of a “Stretch Net Zero” energy code. Having been unsuccessful up to this point in those efforts, these activists have been pursuing other strategies to accomplish their goals. The Brookline bylaw banning all future natural gas connections for new construction, which Attorney General Healey invalidated, and the failed Ipswich “energy efficiency” bylaw are examples of those alternate approaches.

Members of HBRAMA should let the association know if similar bylaws or ordinances are proposed in their communities.

When the Legislature voted on July 31 to extend its formal session to the end of the year, it did so, in part, because differences between the House and Senate remained on several major bills passed by both branches. Included among those is the economic development package, An Act Enabling Partnerships for Growth, initially sponsored by Gov. Baker.

This legislation is a priority of HBRAMA because of its inclusion of the Housing Choices Bill that reduces the vote to adopt local zoning changes that facilitate housing production from 2/3rds to a mere majority, as well as a one-year extension of nearly all approvals for real estate development that were in existence when the governor declared a state of emergency on March 10, 2020 due to the coronavirus.

HBRAMA joined with a coalition of other organizations, including the Massachusetts Municipal Association, in submitting a letter to the House and Senate leadership urging them to accept the language included in H. 4887, which is the unamended version of the Housing Choices Bill, and the permit extension language contained in S. 2842. The letter also urged the lawmakers to reject any provisions that would impose state-set zoning standards, override local decision-making, or create new avenues for costly and unnecessary litigation in any final compromise bill.

The Legislature is expected to begin meeting again shortly after Election Day, November 3, and HBRAMA and its coalition partners will renew its lobbying efforts to secure passage of this critical housing legislation before the end of the current legislative session.

A copy of the coalition letter can be found here.

The state's quasi-public development agency MassDevelopment will soon be in need of new leadership with CEO Lauren Liss preparing to step down at the end of the year after three years at the helm. The Baker Administration recently announced Liss's departure and said that Secretary of Housing and Economic Development Mike Kennealy, who chairs the MassDevelopment board, will be leading the search for the next head of the agency.

"From providing critical financing to growing businesses to supporting the construction of new housing units, Lauren and the MassDevelopment team have played an essential role in our administration’s work on countless projects and initiatives,” said Kennealy. Baker appointed Liss to lead the financing and development agency in 2017 after a career in both the public and private sectors, including a stint as commissioner of the Department of Environmental Protection.

MassDevelopment said that in fiscal 2020 the agency financed or managed 341 projects, helping to generate nearly $2.7 billion in investment in the economy and build or preserve 1,787 housing units.

Gary Campbell elected NAHB National Area 1 Chairman

At the meeting of NAHB’s Area 1 states held during the NAHB Fall Leadership meeting on October 22 HBRAMA past president, Gary Campbell, was elected as the NAHB Area 1 Chairman. Area 1 encompasses all of the New England states, Gary will be certified as a NAHB National Area Chairmen during the annual meeting held in conjunction with the International Builders Show. Area Chairmen are elected to represent the interests and concerns of members from their area and the interests of Associate members. They work closely with the Senior Officers of the Board, forming a vital communications link between NAHB and the leaders and members in each area as well as Associate members

If your community is designated a high-risk community (8 or more cases per 100,000) it will be required to revert to a more restrictive steps of the economic recovery plan implemented by Gov. Baker. The construction industry has been considered essential since the implementation of the COVID-19 restrictions. To maintain that designation it is vital that our workers continue to follow the necessary protocols and safety measures showing the community at large that their safety, and the safety of our workers, is taken seriously. The town of Plymouth recently reported a cluster of infections at a construction site when eight people were carpooling together but no one was wearing a mask. All eight got sick.

Train yourself and your site safety officer on the proper by taking the HBRAMA COVID-19 Exposure Prevention, Preparedness & Response Plan. There is a fee of $29 for members using the discount code: HBRAMEMBER. The non-members cost is $59.

Looking for continuing education hours for your CSL license? The new HBRAMA CSL education website features the latest in online and in-person educational offerings.