Authors
Mariana Korsunsky
Director, Boston
mkorsunsky@goulstonstorrs.com+1 617 574 3584
Kevin P. O'Flaherty
Of Counsel, Boston
koflaherty@goulstonstorrs.com+1 617 574 6413
Gary M. Ronan
Director, Boston
gronan@goulstonstorrs.com+1 617 574 3593
Sydney Cramer
Associate, Boston
scramer@goulstonstorrs.com+1 617 574 0504
Joel E. Antwi
Associate, Washington, D.C.
jantwi@goulstonstorrs.com+1 617 574 0585Related Expertise
Palmer Renewable Energy, LLC v. Zoning Bd. of Appeals of Springfield, 105 Mass. App. Ct. 518 (2025)
Palmer involved a dispute concerning the so-called “Permit Extension Act,” passed by the Massachusetts Legislature (the “Legislature”) during the Great Recession. St. 2010, c. 240, § 173. The act extended the expiration dates of permits issued between August 15, 2008, and August 15, 2012, by four years beyond “the lawful term of the approval.”
In 2011, the City of Springfield Building Commissioner (the “Commissioner”) issued Palmer (a power plant developer) two building permits authorizing the construction of a biomass-fired power plant on industrially zoned property in Springfield. Soon after issuance, the City filed an appeal with the Zoning Board of Appeals (the “Board”) opposing the permits. This resulted in revocation of the permits. Palmer filed an appeal with the Massachusetts Land Court. The Land Court reversed the Board’s decision and reinstated the permits. The City further appealed, and a panel of the Appeals Court affirmed the decision of the Land Court. This “first phase” of the case concluded in 2015.
In 2020, twelve members of the Springfield City Council (the “Council”) requested that the Commissioner issue a cease-and-desist order against Palmer on the basis that the permits allegedly had expired. The Commissioner denied the request, but, on appeal, the Board reversed the Commissioner and revoked the permits. The Land Court affirmed the revocation, reasoning that expiration of the permits was tolled while the City and Palmer were in active litigation, but the Permit Extension Act’s 4-year extension did not tack on more time. Rather, the extra time under the Permit Extension Act ran concurrently with the tolling effected by litigation of the permits.
On appeal, the Massachusetts Appeals Court was called to determine whether the Permit Extension Act’s provision extending permits by four years beyond the “lawful term of the approval” applied concurrently or consecutively with litigation tolling periods. The Court read the Act’s language to provide that the extension applied consecutively, noting that, “[r]ather than limiting the application of the permit extension act to extend from the ‘original term of the permit,’ the Legislature chose to use the modifier ‘lawful.’” Id., at 524. Therefore, “[i]n the absence of any provision to the contrary, the broadly termed phrase ‘lawful term of the approval’ plainly includes a term of approval that has been extended by litigation; and the plain language provides that the four-year extension is ‘in addition’ to the lawful term.” Id., at 525.
Next, the Court held that the litigation tolling period began when the City appealed the Commissioner’s grant of the permits to the Board. In the Court’s view, the purpose of litigation tolling is to allow a plaintiff to keep the benefit of the permit if an appeal determines the permit was lawfully granted. Id., at 527. As a result, the permit should be preserved while litigation is pending. Id. The Court concluded that the permits were issued in 2011 but tolled almost immediately due to litigation. The life of the permits began to run again in 2015. The Act provided an additional four years. Due to the 4-year extension, and a separate COVID-19 extension, the Court concluded that the permits were still valid in October 2020 when the Council asked the Commissioner for a cease-and-desist order. As a result, the Appeals Court overturned the Land Court’s revocation of the permits.
Palmer clearly indicates that Massachusetts courts will tend to liberally construe extensions of municipal permits so as not to unfairly deprive property owners of the benefits of those permits.
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