Under a new order issued by Governor Baker, towns and cities may override local zoning and allow restaurants to offer outdoor dining and beverage service. The order is part of the state’s COVID-19 Phase 2 Re-Opening Plan, which could start as early as June 8.

COVID-19 Order No. 35 , signed on June 1 and effective immediately, provides that towns and cities may approve requests to expand outdoor table service notwithstanding the provisions of M.G.L. c. 40A (the Zoning Act). Outdoor dining is often regulated by local zoning bylaws/ordinances, which are not easily amended or waived. This has been an obstacle for restaurants looking to start on-site food service outdoors, as allowed by the Phase 2 Re-Opening Plan.

Under the Governor’s new order, the mayor, city manager or select board may establish a process for approving requests for outdoor dining and this process does not need to comply with the notice and publication provisions normally required for land use approvals. Towns and cities may also amend alcohol licenses to authorize outdoor beverage service without seeking the approval of the state Alcoholic Beverages Control Commission. A license amendment does not require abutter notice or a hearing, according to an ABCC advisory .

Local approvals for outdoor dining would expire when the Governor rescinds the order, or November 1, whichever is sooner.

Please contact a member of Mirick O’Connell’s Public and Municipal Law Group with specific questions on the Governor’s new order.