May 2020
An Open Letter from HBRAMA President Matt Anderson

It goes without saying that many of us have felt overwhelmed over the past eight weeks. We have found ourselves in new situations that would have been hard to imagine just a short time ago. While our everyday activities and routines have been negatively impacted by the Covid-19 pandemic there has also been a lot of good happening around us, we just need to look a little harder to see it. 

While my children are struggling with their new reality I have noticed something extraordinary. My kids are finally able to be kids! They have been spending their days learning to be independently motivated to complete their schoolwork and once completed the day is now theirs. They are spending their afternoons riding bikes, taking walks in the woods and exploring the neighborhood.

You may be wondering what my children have to do with the state of building in Massachusetts. Well I have observed many of the same changes in our daily routines as building professionals, as I have in our youth. Many of us are no longer able to report to our offices, visit town halls or even our supply yards. We have been forced to slow down and focus on the most important aspects of our businesses. The same has occurred within our home builders associations. No longer are we able to focus on networking activities or fundraising events. We have been forced to focus on the single problem currently at hand. 

The leadership shown within our HBA’s has been impressive. At the local level our boards and executive officers have quickly acted to gather information on how our local municipalities are operating, and filtered that information to our state lobbyist, Ben Fierro. Through Ben’s efforts we have seen the Governor’s administration issue clarifications and directives to our municipalities to ensure our industry is able to remain operational.

HBRAMA’s strong relationships with many state officials was evident when we were invited to participate in a planning session with the Governor’s Reopening Advisory Board chaired by Lt. Gov. Polito. Having the opportunity to express our positions and concerns directly to the Lt. Governor along with members such as Secretary of Housing and Economic Development Mike Kennealy has been invaluable.

So, as I ponder why am I a member of HBRAMA I quickly find my answer looking around our home building community. Through the joint efforts of our membership we have been able to demonstrate the importance of our industry and the positive impacts we have in our communities to our state government, helping to allow us to remain open for business in a safe manner throughout this pandemic. I hope that as you look around, you too recognize the work our HBA’s have been doing to support you and your business! We encourage you to reach out with both the challenges you are facing as well as some of the positive experiences.

As we begin moving back towards our traditional “normal” I hope you will continue to support your local HBA as we are much stronger with your participation!

I need to give a shout out as well to the volunteer team that has helped the Association’s Covid-19 Exposure, Prevention, Preparedness and Response Plan. Those members included: Tom DiPlacido, Brian Lussier, Jeff Rhuda, Scott Colwell, Emerson Clauss and Jeff Brem. In addition Rob Brennan has been working with our staff along with Paul and Susan Kadilak and Evan Hatten of Kadilak Homes to put together an on-line training and certification course on Covid-19 safety protocols.

HBRAMA Meets with Reopening Advisory Board
Representatives of the Home Builders and Remodelers Association of Massachusetts met with Governor Baker’s Reopening Advisory Board on Sunday, May 3, to discuss the current status and readiness level of its members to fully resume residential construction in the Commonwealth.

The Advisory Board is charged with advising the Baker-Polito Administration on strategies to reopen the economy in phases based on health and safety metrics. A report will be developed by May 18 and will include the Department of Public Health approved workplace safety standards, industry frameworks and customer protocols and guidelines, including enforcement mechanisms and coordination with municipal leaders.
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

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.

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

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 .  

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. 
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.

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