The 17-member group is Co-Chaired by Lt. Gov. Karyn Polito and Housing and Economic Development Secretary Mike Kennealy.
During the course of the meeting, HBRAMA representatives explained that its Members build and develop housing almost exclusively in suburban and rural settings. Consequently, they are better able to accommodate “social distancing” and implement other DPH workplace protocols to avoid the spread of the novel coronavirus than those contractors building in downtown Boston and other urban locations.
While Gov. Baker’s
COVID-19 Emergency Order
of March 31 deemed “workers performing housing construction related activities” as “Essential Services” and allowed to continue during the current state of emergency, compliance with that order has been inconsistent among municipal officials. HBRAMA informed the Board that some towns are narrowly interpreting the governor’s order to prohibit certain types of housing construction or halting remodeling work already begun.
HBRAMA believes these actions taken by local officials have been motivated out of a belief that housing construction cannot be undertaken safely. HBRAMA is developing a “Residential Construction and Remodeling COVID-19 Exposure Prevention, Preparedness, and Response Plan” that will be submited to the Reopening Advisory Board. HBRAMA hopes that the inclusion of that plan among the Board’s recommendations will substantially ameliorate the concerns of those communities and result in more consistent compliance with the letter and spirit of the governor’s order regarding “housing construction related activities.
The Advisory Board was also told that some housing projects were being delayed because of the failure of local boards and commissions to conduct regular hearings, despite the governor’s emergency order relaxing many of the provisions of the Open Meeting Law and the widespread availability of videoconferencing.
HBRAMA submitted a memorandum to the Reopening Advisory Board addressing many of the issues confronting homebuilders who are attempting to produce housing in the face of the COVID-19 pandemic. A copy of that memorandum can be found
here
.
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AG Ruling on Brookline Bylaw Delayed
Attorney General Maura Healy was granted a 90-day extension from the Town of Brookline for making a ruling on their bylaw that would require the town’s building commissioner to withhold building permits for new construction and significant renovations of existing buildings, if those buildings include new natural gas connections for heat, hot water, or certain other purposes. She was to have made a decision regarding the legality of the bylaw by April 22. The new deadline is July 21, 2020.
Unlike city ordinances, local town bylaws must be reviewed and approved by the Attorney General before they can become effective. At least 15 other communities are reported to be considering adopting a similar ban on new natural gas infrastructure, including the cities of Newton and Cambridge and the towns of Lexington and Arlington.
HBRAMA, together with a coalition of other organizations, submitted a memorandum to the Attorney General urging her to invalidate the bylaw. The association is concerned that the bylaw creates impermissible inconsistencies with respect to the type of heat and hot water infrastructure that may be installed in different communities across Massachusetts. HBRAMA also believes that wealthy suburban communities will adopt similar bans as a means of either stifling new housing development or increasing its cost so as to exclude individuals and families of modest means.
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HBRAMA Urges BBRS to Delay New Energy Code
HBRAMA joined with NAIOP Massachusetts, the Associated General Contractors and other organizations, in submitting a letter to the Board of Building Regulations and Standards urging it to extend until January 1, 2021 the concurrency period by which builders may use either the new energy code or the existing one.
The BBRS announced in January that the 2018 version of the International Energy Conservation Code (IECC) would be adopted with an effective date of February 7, 2020. As with previous code adoptions, the board also adopted a 6-month concurrency period that allows all projects that file for permits between February 7, 2020 and August 7, 2020 to use either the MA amended 2015 IECC or the MA amended 2018 IECC.
Across the Commonwealth, municipalities are facing challenges to the way they do business due to the coronavirus. Some municipalities are not accepting and certifying receipt of permit applications due to public health concerns, which means that projects that had initially planned to move forward using the existing code have been prevented from doing so.
Given that there is continued state of emergency, it would be a lengthy and expensive process to redesign these projects, potentially jeopardizing them from moving forward even after the State of Emergency is lifted. And the backlog of permit applications will be extensive when it is lifted, causing further delays and exacerbating the current housing shortage.
A copy of the letter from the HBRAMA and others can be found
here
.
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Bill Introduced for Liability Protection for Contractors
State Reps. Paul Marks (D-Dalton) and Daniel Donahue (D-Worcester) recently filed legislation that would provide liability protection for contractors, subcontractors during the COVID-19 pandemic and continuing for six months thereafter.
The bill, HD No. 5038, would grant to a construction contractor or subcontractor, immunity from suite and civil liability for any damages allegedly related to construction delays caused by: 1) unforeseeable shortages in available workforce resulting from the COVID-19 pandemic; 2) unavoidable schedule changes resulting from federal, state or local government orders, or other measures to protect the public from the novel coronavirus; and 3) contractor/subcontractor compliance with federal, state and local government orders, or measures to protect the public (and its workforce) from COVID-19.
This legislation is currently before the Joint Committee on the Judiciary, which has not yet scheduled a public hearing on it. A copy of the bill can be found
here
.
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Governor Signs Bill for Electronic Notarization
On April 27, Governor Baker signed
Chapter 71 of the Acts of 2020
, An Act providing for virtual notarization to address challenges related to COVID-19, which permits notaries in the Commonwealth to notarize documents remotely with the assistance of electronic videoconferencing technology while Massachusetts remains under the COVID-19 state of emergency (the “Remote Notarization Act”).
The Act provides that an acknowledgment performed remotely using videoconferencing is valid if: (1) the notary public observes each principal’s execution of a document; (2) both the notary public and each principal are physically located in Massachusetts; (3) each principal, which includes required witnesses, provides the notary with “satisfactory evidence of identity”; (4) each principal makes the acknowledgment, affirmation or other act to the notary public; and (5) a principal causes the executed document to be delivered to the notary public by delivery service, courier, or other means in accordance with the notary public’s instructions.
If the document involves “a mortgage or other conveyance of title to real estate,” then “upon receipt of the executed document, the notary public and each principal [must] engage in a second video conference during which each principal verifies to the notary public that the document received by the notary public is the same document executed during the first video conference.”
The Act also requires that each principal swear or affirm under the pains and penalties of perjury that they are physically located within Massachusetts, and disclose the presence of any other person in the room and make that person “viewable” to the notary public. It also requires the notary public to (among other things) make a recording of the videoconference and keep it for 10 years. These provisions would be temporary: they would be repealed three business days following the end to the COVID-19 state of emergency.
The Act ensures that real estate closings, can continue during the pandemic, while simultaneously ensuring that all involved can remain safe while doing so and while also protecting the integrity and validity of the notarized documents for future purposes.
