Through our work with our clients and members of the Worcester Regional and MetroWest Chambers of Commerce, we have been greatly impressed by the creativity of businesses seeking to adapt, as they try to survive, meet community needs and provide for required social distancing.
We also see with each passing day local businesses close, with others fearful that they may be unable to hold on much longer due to the impacts of COVID-19. Restaurants and retail businesses have been especially hard-hit, without options for “distributed work force” and work-from-home solutions used so effectively by white-collar businesses, while society waits for a treatment or vaccine needed for a true reopening.
Many of these closures impose inordinate impacts on women and minority populations. For example, according to recent data of the Bureau of Labor Statistics, restaurants employ a disproportionate number of female, black, Hispanic, and Asian workers in comparison to the employed population as a whole. During this public health crisis, time is of the essence to enact strategies to ward off business closures, and prevent the snowball effect of job loss, lost tax revenues, budget shortfalls and the blight of empty storefronts.
Some, if not most, of the changes businesses seek to survive may be prohibited or restricted by local zoning regulations, and prohibitions or limits of prior land use approvals for individual businesses and landowners.
We were heartened by this week's issuance by Governor Baker of COVID-19 Order No. 35, including relief for seated food services, which allows cities and towns to administratively approve zoning related requests and amendments to existing decisions, and the Alcoholic Beverage Control Commission's advisory to licensing authorities of cities and towns permitting streamlined review of layout plans for outdoor table service.
We are also aware of proposed legislation carrying helpful suggestions on alcohol licensing. Some cities and towns are starting to adopt these types of temporary measures, including Arlington, Boston, Framingham, Milford, Somerville and Worcester. But, the path for a business to gain these types of accommodations and approvals across the state is not clear or widely available.
Even with some of the enacted forms of relief to date, many changes required by the range of our community's businesses still require processes which in the normal course of business would take many months and great expense. Given municipal differences, no one-size-fits-all approach seems available without state action to authorize emergency measures. Mayors, city councils, select boards, city or town managers, town meetings and administrative staff all might have some existing authorization under by-laws or ordinances, but a great deal of confusion still exists in local communities as to how to take these steps in a responsive way.
Although this list is not necessarily all-inclusive, some additional temporary measures which may increase likelihood of business survival include:
1. Extend zoning relief to retail uses, distribution centers and other uses needing temporary relief.
2. Provide restaurants with more latitude on indoor changes necessitated by social distancing guidelines.
3. Allow temporary changes for outdoor alcohol service not tied to food service.
4. Allow some uses that are restricted by zoning or by formerly issued permits, with streamlined administrative approvals – for example to allow drive-up lanes and sidewalk use for retailers providing curb-side pick-up and outdoor sales, where changes may conflict with existing site plan approvals.
5. Suspend “change in use” and “mixed-use” restrictions imposed by zoning or prior permitting approvals – such as retail purchase pick-up areas which may change a use category to “distribution center”, or a mix of uses such as restaurant and retail, or retail and entertainment (i.e. movies shown on walls of shopping centers) rather than one use category.
6. Streamline permitting so that applicants have one point of municipal contact, and not multiple separate processes and hearings.
7. Create delivery/pick-up zones for businesses that don't have their own space to accommodate such zones for businesses other than restaurant.
8. Change limits on hours of operation, if existing permitting is too restrictive.
9. Allow portable signage where prohibited by local by-law or ordinance for any business.
The necessary temporary changes businesses must make would be greatly facilitated by a more comprehensive executive order or legislation on zoning, such as Executive Order No. 7MM recently issued by Connecticut Gov. Ned Lamont.
Lamont's order allows municipalities to expedite changes to their zoning rules or other ordinances for outdoor restaurant, retail and other uses, with an expedited approval process. Connecticut's temporary changes allow cities and towns to maintain oversight by designating local zoning enforcement officers or health officials who review and look out for important public protections, while also allowing municipalities to adopt flexibility (or not) as each community sees fit.
For those Massachusetts communities that seek the tools to be nimble and fully responsive to the unprecedented needs COVID-19 presents, we believe that a combination of broader state authorization to include more business uses, coupled with municipal flexibility that is smartly exercised, will make all the difference.
Originally published by Worcester Telegram on the 8th of June, 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
