Last week, in an important decision for land-use and development lawyers, the Massachusetts Appeals Court ruled in Palmer Renewable Energy, LLC v. Zoning Bd. of Appeals of Springfield that permit extensions granted by the Legislature “stack” on top of equitable tolling triggered by the appeals process. The Land Court had found that permit extensions under the Great Recession-era “permit extension act,” St. 2010, c. 240, § 173, ran concurrently with the tolling period arising from litigation. The Appeals Court reversed, concluding that the four-year extension of building permits issued to Palmer Renewable Energy, LLC for its biomass-fired power plant began to run after the term of the permit as extended by “litigation tolling.” The Appeals Court also ruled that the litigation tolling started when the City Council appealed to the zoning board of appeals (ZBA) from the building commissioner’s decision to issue the permits.

The case turned on the meaning of statutory language extending the tolling period by four years “in addition to the lawful term of the approval,” and whether those four years ran concurrently with litigation tolling. Because the Legislature is presumed to be “aware of the statutory and common law that governed the matter in which it legislates,” the Appeals Court presumed the Legislature was aware that building permits may be extended by litigation tolling. The Appeals Court found that the language of the statute was unambiguous and that “lawful term” plainly included a term of approval that had been extended by litigation tolling, so the four-year extension was “in addition” to the lawful term.

The Appeals Court also took a close look at when the litigation tolling began, and found it began once the City appealed the building permits to the ZBA, rather than when the ZBA revoked the permits. Because “an appeal from the grant of a permit has been recognized as a real practical impediment” to the use of the permit, and “practical consideration[ ]s militating against a course of action under attack” underpin the purpose of litigation tolling, the Appeals Court found that the appeal at the local level was a sufficient “impediment” to the exercise of the building permits.

Finally, the Appeals Court rejected the City’s argument that M.G.L. c. 40A, § 6, which requires construction under a building permit to begin within one year of issuance, applied to invalidate the subject building permits after one year, thus requiring the project to comply with a 2013 zoning amendment mandating a special permit for the project. It also rejected the City’s argument that the state Building Code requires commencement of construction within 180 days. Both the Building Code and M.G.L. c. 40A were expressly overridden by the language of the permit extension act, which applied “[n]otwithstanding any general or special law to the contrary.”

The Appeals Court remanded the case to the Land Court for entry of a judgment instructing the ZBA to reinstate the building permits.

This decision provides important clarity as developers seek to exercise permits that have been extended due to the COVID-19 permit extension act, St. 2020, c. 53, § 17(b) (iii), and the Mass Leads Act, St. 2024, c. 238, § 280 (b)(1). Like the 2010 act, the Mass Leads Act also extends permits for two years, “in addition to the lawful term of the approval.” The decision also pours much-needed cold water on would-be appellants who seek to stop projects by delaying them through litigation.