July 2020
Brookline Bylaw Banning New Gas Connections Ruled Invalid

In an major victory for the HBRAMA, Massachusetts Attorney General Maura Healey ruled that a bylaw adopted last fall that would have required Brookline’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 was invalid.
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 were reported to be considering adopting a similar ban on new natural gas infrastructure, including the towns of Lexington and Arlington.

In her decision, Healey found that the Brookline bylaw prohibiting any permits for construction of certain buildings with fossil fuel infrastructure conflicts with the laws of the Commonwealth because the State Building Code (G.L. c. 143, §95(c)), the Gas Code (G.L. c. 142, §13), and the authority of the Department of Public Utilities over the sale and distribution of natural gas (G.L. c. 164) occupy the field of regulation and preempt local bylaws in their respective fields.

The HBRAMA, together with a coalition of other organizations, had submitted a legal memorandum to the Attorney General urging her to strike down the bylaw. The association was concerned that the bylaw would create impermissible inconsistencies with respect to the type of heat and hot water infrastructure that may be used in homes in communities across Massachusetts and increase the cost of new housing.

Although the AG’s ruling does not apply to municipal ordinances, the fact that Brookline’s bylaw conflicts with existing state statutes should act to discourage cities from adopting similar bans as they would likely fall to a court challenge.

While finding that the bylaw clearly conflicted with the laws or Constitution of the Commonwealth, the Attorney General made plain that if she could, she would have approved the bylaw stating, “If we were permitted to base our determination on policy considerations, we would approve the by-law.” 

The Attorney General’s decision can be found here
BBRS Extends Concurrency Period for Energy Code

The state Board of Building Regulations and Standards (BBRS) recently adopted an emergency regulation to extend the concurrency period of the new energy code for three months. The board’s action at its meeting on July 14 came at the urging of the HBRAMA and NAIOP Massachusetts, as well as other organizations.
The BBRS had 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 Massachusetts amended 2015 IECC or the Massachusetts amended 2018 IECC. The board’s vote extends that concurrency period to November 7, 2020.

Homebuilders and remodelers are facing enormous challenges to the way they do business in Massachusetts due to COVID-19. Some municipalities are still not accepting permit applications due to public health concerns. Other cities and towns suspended holding public hearings on applications for permits that had been filed before the declaration of a state of emergency by Gov. Baker on March 10. Consequently, residential and commercial projects that had initially planned to move forward using the existing code have been prevented from doing so.
Redesigning these projects now could potentially jeopardize them from ever 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.

 The HBRAMA had sought a 1-year extension of the concurrency period. The BBRS, however, could only extend the period through an emergency regulation for a maximum of 90 days. A longer extension requires the board to formally amend its regulations. The HBRAMA continues to advocate for a longer extension and has been informed that the BBRS may hold a public hearing to consider doing so at its next meeting on August 14.
A copy of the letter from the HBRAMA can be found here
HBRAMA Submits Testimony in Support of Economic Development Bill

The Legislature’s Joint Committee on Economic Development & Emerging Technologies held a virtual public hearing on Gov. Baker’s revised economic development bill (H.4529, An act enabling partnerships for growth) on June 26. The HBRAMA submitted testimony in strong support for this important legislation.
Gov. Baker had originally filed this bill on March 4. In its written testimony, the HBRAMA urged the committee to support Sections 76 – 85, 94, 107-108 and 198-199 of H. 4529 that would enact the Governor’s Housing Choices Bill. These provisions will advance the state’s need for housing while respecting the important role municipalities play in guiding new housing production.
The Housing Choices Bill does not mandate what projects are approved – it simply establishes a more realistic standard of judgment. It lowers the voting threshold for pro-housing zoning changes and certain special permits from a 2/3 vote to a simple majority. That means that more projects – projects that are right for their communities and have community support – will get built, allowing increased opportunities for all of their residents.
Due to the Credit Crisis of 2008 and the Great Recession of 2009, residential construction came to a halt as projects lost their financing, companies sought to preserve capital and demand fell. To ensure that these projects would remain viable and promote job creation, economic growth and tax revenue, the Legislature passed the Permit Extension Act of 2010. The Permit Extension Act established a two-year tolling period that extended the term of permits for real estate development projects that had received local or state approval.

The economic conditions that necessitated the enactment of the Permit Extension Act of 2010 now appear mild compared to the devastation being wrecked upon our state’s economy by the pandemic. Consequently, the HBRAMA recommended that the committee include language for a 2020 Permit Extension Act in the bill.
A copy of the HBRAMA’s testimony can be found here .
HBRAMA Opposes costly COVID-19 Bills for hazard pay and insurance

The HBRAMA submitted testimony to the Legislature’s Joint Committee on Labor and Workforce Development in opposition to two bills that would impose costly mandates on all employers who provide “COVID-19 Essential Services,” as designated under Governor Baker’s executive orders addressing the coronavirus pandemic.
On March 23, Gov. Baker declared “construction workers who support the construction, operation, inspection, and maintenance of construction sites and construction projects (including housing construction)” as “COVID-19 Essential Employees.” That order was later revised on March 31 limiting construction to only those “workers performing housing construction related activities, including construction of mixed-use projects that include housing, to ensure additional units can be made available to combat the Commonwealth’s existing housing supply shortage.”
House Bill No. 4745, An Act providing hazard pay for essential workers in the COVID-19 Emergency, would require employers whose services are “COIVD-19 Essential Services” to pay their employees “hazard pay” which shall be calculated as one and a half times the employee’s actual earnings for any day they were required to work. This mandate would be retroactive to March 23, 2020.
Most member companies of the HBRAMA are small businesses that cannot afford to pay their employees time and a half. The cost of labor, materials and land has already made Massachusetts one of the least affordable states to own a home. H. 4745 would raise the cost of a new home beyond the reach of all but the affluent. To be required to retroactively pay time and a half compensation for jobs already completed or contracted for will, if enacted, result in economic ruin for many homebuilders and remodelers.

House Bill No. 4740, An Act relative to emergency health benefits for essential employees, would require any “essential employer” that requires an “essential employee” to report to work to perform out-of-home duties shall provide emergency health hazard benefits to each essential employee, regardless of how long the employee has been employed. Such emergency health hazard benefits shall include, but not be limited to, compensation equal to that the essential employee would be entitled to under normal circumstances.
The bill also provides that any employee who contracts, has symptoms of, or otherwise becomes infected with COVID-19, that results in a period of hospitalization, quarantine, or requires self-quarantine measures as a result of being infected or coming into contact with someone who is infected with COVID-19, shall have their medical condition or incapacity to work presumed to be work-related. This presumption would have a huge detrimental impact on workers compensation rates in the future and will add significant costs to an already burdened industry.
A copy of the HBRAMA testimony can be found here .
HBRAMA opposes 1-year extension of eviction moratorium

The HBRAMA has joined with the Greater Boston Real Estate Board, the Massachusetts Association of Realtors and NAIOP Massachusetts, to oppose legislation that would enact an eviction moratorium lasting twelve months from the end of the March 10 state of emergency. Such an action would cripple real estate, creating extensive short- and long-term impacts on the housing market.
HD.5166/SD.2992, An Act to guarantee housing stability during the COVID-19 emergency and recovery, are currently pending before the Legislature’s Joint Committee on Housing.
Responding to the impact of the COVID-19 pandemic on residential and small commercial tenants, the Legislature enacted Chapter 65 of the Acts of 2020, An Act providing for a Moratorium on Evictions and Foreclosures During the COVID-19 Emergency . That law established unprecedented protections for such tenants, suspending evictions and halting the foreclosure of most residential properties . Signed into law by Gov. Baker on April 20, the moratorium will remain in place until the earlier of August 18 or 45 days after end of the state of emergency.
In addition to extending the current eviction moratorium an additional twelve months, HD. 5166/SD. 2992 would impose rent cancellation and rent control, unfairly expose good faith property owners to Chapter 93A damages, and seal records of all renters, not just those impacted by COVID-19. These provisions and others will damage every property owner in Massachusetts, further exacerbate the state’s housing crisis, and substantially disincentivize rental housing development.
The HBRAMA also believes the legislation is also unnecessary as the protections of Chapter 65 cited above may be extended by the governor for up to forty-five days after the state of emergency has ended, in increments of up to ninety days at a time. And on July 21, Gov. Baker announced his intention to extend the current eviction moratorium for 60 days, which will now expire on October 17 rather than August 18. 
A copy of the joint statement of the HBRAMA, GBREB, MAR and NAIOP Massachusetts setting forth in detail the reasons for its opposition to this legislation can be found here .  
MassDEP convenes nitrogen sensitive area (NSA) subcommittee

Due to concerns raised about how nitrogen-sensitive areas (NSA’s) are regulated, the MADEP recently announced the formation of the NSA Subcommittee, a subcommittee arising from the Massachusetts Dept. of Environmental Protection Title 5 and Groundwater Discharge Regulatory Review Stakeholder Group. Title 5 includes a provision for the designation of “Nitrogen Sensitive Areas ” (NSAs), areas particularly sensitive to the nitrogen discharges from septic systems (310 CMR 15.215). This provision states areas within a Zone II or IWPA of a public water supply are NSAs and authorizes MassDEP to identify other areas based on scientific evaluations of the affected waterbodies.
Designation as an NSA triggers the imposition of wastewater loading restrictions. Current regulations require MassDEP undertake a site-by-site regulatory change to designate an area (other than a Zone II or IWPA) as an NSA. Concerns were raised that the required process is an impediment to effectively using the NSA designation tool as a way to address nitrogen contamination in impacted areas. In addition to potentially streamlining the designation process, comments were made regarding changes that could be made to the specific requirements triggered by such a designation that may prove more effective in addressing the specific challenges facing Cape Cod and other southeastern Massachusetts communities.
Thanks go to Jeff Brem of Meisner Brem Corp. for volunteering his time to serve on this important subcommittee.
HBRAMA endorses proposed Federal REHAB Act

The HBRAMA Board of Directors recently voted to endorse passage of H.R. 6175, the Revitalizing Economies, Housing, and Businesses (REHAB) Act of 2020. This legislation would establish a new federal tax credit for the rehabilitation of buildings and adjacent buildings that are at least 50 years old and are near public transit facilities, but are not designated as a historic structure.
This 15% tax credit would be a compliment to the state’s low-income housing and brownfields tax credit programs. Key facts about this new program:
  • the tax credit can be applied to housing, either solely residential or mixed-use;
  • the credit can be combined with an extra 10% for the investment of public infrastructure or attainable housing;
  • the tax credit can be used on a qualified building that is within ½ mile of an existing or planned public transportation facility; and,
  • it is a project-based credit, which includes residential rental property, building expansion, rehabilitation and new construction on adjacent lots on the same block.
HBRAMA President Matthew Anderson sent a letter to Rep. Richard Neal expressing the Association’s support for H.R. 6175 and asking him to cosponsor this vital bipartisan legislation.
The REHAB Act is supported by the National Association of Home Builders. It has also been endorsed by the Historic Tax Credit Coalition, the American Planning Association, Smart Growth America, International Council of Shopping Centers, among other organizations.

A copy of the letter can be found here .  
USDOT announces regulatory changes for CMV carriers

The U.S. Department of Transportation recently announced updates to its regulations regarding Commercial Motor Vehicle (CMV) carriers. Massachusetts has adopted the Federal Motor Carrier Safety Regulations as they apply to interstate carriers through CMR 14.00.
Texting while driving a CMV remains prohibited under federal regulation unless utilizing the emergency exemption to communicate with law enforcement officials or other emergency services when necessary. Marijuana is and continues to be prohibited for use by CMV drivers. Marijuana, including a mixture or preparation containing marijuana, continues to be classified as a Schedule I controlled substance by the Drug Enforcement Administration. A person is not physically qualified to drive a CMV if he or she uses any Schedule I controlled substance such as marijuana. In addition, a driver is prohibited from being in possession of or under the influence of any Schedule I controlled substance, including marijuana, while on duty.
Important changes to CMV driver’s Houses of Service regulations are coming effective September 29, 2020. These changes include expanding the short-haul exception to 150 air-miles and allows a 14-hours work shift to take place as part of the exceptions, expanding the driving window during adverse driving conditions by up to an additional 2 hours, requires a 30-minute break after 8 hours of driving time and allows an on-duty/not driving period to qualify as the required break. These and other updates to the regulations were set forth in a letter from the USDOT to the HBRAMA.  
A copy of the letter from USDOT can be found here .
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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