Barry R. Crimmins

When COVID restrictions descended on us in March, more than one developer had angst over what that might mean for moving forward on their development projects that they had in front of municipal boards for review. Would the ripple effects of the pandemic bring their projects to a grinding halt?  

As town halls and city halls came under state regulations which essentially closed all public buildings and moved all activity from in-person to virtual, there was certainly cause for concern. 

In those first weeks, many boards (planning, zoning, conservation, select) did not meet at all. A large number of them took a “wait and see” position to see if they would be able to conduct board meetings in person again soon. No one really knew how long the pandemic would last. Would it be just a few weeks? A month? Or, as we have unfortunately come to realize, much longer? In Braintree, for example, the town’s Planning Board did not resume its meetings until July. 

COVID initially had a negative impact on development in that it caused some communities to simply stop holding meetings. And with no meetings, there was little opportunity for forward motion with plans to develop housing units, banking branches, mini-malls and construction in general.  

Anything in the permitting process seemed frozen in place – for a while. But most municipalities soon began the process of converting to remote meetings, whether through Zoom, Go To Meetings, Teams or other online platforms. So, the good news was that there was a way forward after some initial delay. 

Challenges Abound 

How has it all worked? The jury’s still out on that question.  

Remote meetings are not without their challenges. It’s different for a developer or a developer’s representative used to meeting in person and being able to gauge reaction to a proposal by body language or eye contact. In-person meetings often afford a snapshot of how well an idea is being received and what needs to be done to mitigate concerns. Some of that is lost in this electronic communication.  

There are also difficulties in sharing documents, such as site plans, in a way that both board members and abutters can see and understand what they are looking at. This must be done remotely via screen-sharing as opposed to setting up a plan on an easel and “walking someone through” the information in a person-to-person setting. In some cases, it is not easy to be able to see a plan clearly, and this can cause concerns for abutters and other interested parties. It can be difficult for all parties involved to get a good and comprehensive idea of what is being proposed by looking on a computer screen.  

OML Uncertainty 

One benefit of remote meetings is that they save everyone the time of commuting to a municipal location. However, that positive benefit is somewhat offset in that it seems there are fewer abutters and other interested parties who attend the meetings. That may be in part due to a lack of comfort with technology: The connection freezes, for example, and there are sometimes other technical challenges as well.  

Another challenge is that many municipalities have cut down their hours and the availability of staff, so scheduling pre-filing review meetings can present challenges for the project team and municipal staff alike. 

Another issue that I have heard is the potential for challenges to the Open Meeting Law. For those who might wonder, it has been determined that these online meetings, as long as they follow certain protocols, do comply with the Open Meeting Law.  

But potential challenges to the Open Meeting Law aside, it’s difficult to predict what might happen if abutters or other potential appellants feel they were denied due process through this medium, and it is possible that there could be some challenges arising in the future because of a perceived lack of being able to participate fully in the hearing process. 

Overall, it seems that the municipalities are making a good faith effort to accommodate parties during these unprecedented times. It is a learning process for us all. It is also reassuring to see that lenders have been willing to work with developers to provide financing for their projects. With generally good availability of capital and lender financing in place, and the online platforms that allow municipalities to meet with developers and their representatives, it appears that our area’s commerce should continue to move along at a good pace, particularly in the real estate sector, and that is certainly good news for all of us. 

Now all we need to do is figure out how to get rid of COVID and get back to “normal.”  

Barry Crimmins is a real estate attorney and founder and principal of Platinum Partners LLC, a land use permitting and consulting firm that represents clients throughout Massachusetts.