Massachusetts Communities Think Globally, Act Locally on Climate Change: Massachusetts Climate Change Adaptation Initiatives: What Real Estate Professionals Should Know, Part 3

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Highlights

  • Increasingly, Massachusetts cities and towns are pushing the envelope on their local Home Rule authority to adopt climate change ordinances and bylaws, with city councils, boards of selectmen and town meetings getting in the game to drive change locally.
  • Many of these initiatives raise important legal issues, particularly regarding appropriate local process and preemption by state or federal law.
  • This Holland & Knight alert is the third in a series covering Massachusetts initiatives targeting the Commonwealth's anticipated need for climate change adaptation, focusing on the potential implications for real estate development and permitting.

The previous alerts in this Holland & Knight series have focused on state level initiatives from the Massachusetts Legislature, Governor's Office and the Massachusetts Environmental Policy Act (MEPA) Office related to climate change, but there also has been lots of action at the local level. Increasingly, Massachusetts cities and towns have pushed the envelope on their local Home Rule authority to adopt climate change ordinances and bylaws. The old adage "Think Globally, Act Locally" has real momentum now.

This alert highlights areas where city councils, boards of selectmen and town meetings are getting in the game to drive change locally. Many of these initiatives raise important legal issues, particularly regarding appropriate local process and preemption by state or federal law. This alert provides an introduction to these legal issues, without trying to delve into the policy issues.

In Massachusetts, local bylaws adopted by towns must be reviewed for approval by the Massachusetts attorney general. G.L. Ch. 40, Sec. 32. The attorney general's standard of review is whether the bylaw conflicts with state law or the Commonwealth's Constitution. Though local ordinances adopted by cities are not subject to attorney general review under G.L. Ch. 40, Sec. 32, they are legislative acts that are subject to judicial review in state or federal courts. This sets up an odd dynamic that the same local law adopted by a town and by a city may result in a situation where the town law is disapproved by the attorney general, but the city ordinance may not be challenged in court and may be legally effective as a result.

Local Natural Gas Bans

One of the hottest topics is local natural gas bans designed to prevent new gas hookups. A 2019 local ban adopted by the Brookline Town Meeting was deemed preempted by the Massachusetts attorney general in July 2020. Other towns are in the process of considering if there are ways to adopt such a local gas ban in a manner that would not be disapproved by the attorney general on preemption grounds. On the flip side, in other parts of the country, state legislatures are enacting state laws to prohibit municipalities within their cities and towns from adopting such local gas bans. Differing approaches to local control is becoming such an issue that it has warranted front page news coverage in The Wall Street Journal (June 1, 2021).

The attorney general's basis to disapprove the Brookline gas ban is that it is preempted by the state Building Code, state Plumbing Code and the Massachusetts Department of Public Utilities (DPU) regulatory scheme for the sale and distribution of natural gas and electricity. These preemption arguments present some very high hurdles for any other town to try to craft a local gas ban that would pass muster.

The attorney general's decision does, however, acknowledge that in other environmental regulatory areas, such preemption is not appropriate. For example, the Massachusetts Wetlands Protection Act does not preempt the adoption of local wetlands bylaws, on the grounds that the state Wetlands Protection Act does not attempt to create a uniform statutory scheme. This reflects a public policy that in the management of local wetlands, there is not a need for uniformity, particularly in the context where local regulation can be more stringent but not less stringent.

Zoning

The dominant vehicle for local regulation of uses of land in Massachusetts is zoning. G.L. Ch. 40A. It is therefore not surprising that zoning ordinances and bylaws are increasingly being updated by cities and towns to try to incorporate zoning criteria relevant to climate change. For example, the city of Newton added a special permit decision criteria whether "the site planning, building design, construction, maintenance or long term operation of the premises will contribute significantly to the efficient use and conservation of natural resources and energy." See Newton Zoning Code Sec. 7.3.3.C.5. The Boston Zoning Code now contains green building standards (in Article 37) linked to Leadership in Energy and Environmental Design (LEED) certification, and the city has an active working group developing a material enhancement to Article 37 for the purpose of having the Zoning Code for new buildings and possibly also for material renovations mandate zero net carbon in building design and construction. The Boston initiative is scheduled for implementation in 2022.

Non-Zoning Local Ordinances and Bylaws

Amendments to zoning codes require a high level of public notice, process and in many cases a supermajority vote of a town meeting or city council. Because of these substantial procedural requirements and protections, municipalities often try to adopt land use controls that may appropriately be the proper subject matter of zoning as part of that city or town's general Home Rule and/or police power. For example, local bans on the sale of plastic products are routinely adopted and upheld as being within the right of a locality to regulate commercial activity within their community. Of course, there is a fine line between regulating the use of land (zoning) and regulating commercial activity (what products can be used and/or sold). The reason this is relevant to local initiatives that are for the purpose of reducing and eliminating carbon emissions is that both the process and the standard of review for zoning and non-zoning bylaws are different. Further, each local town or city charter needs to be reviewed to determine how authority is vested in the local government to regulate (or prohibit) certain types of buildings and certain activities.

Coastal Flood Resiliency

As noted above, the courts have been consistent is upholding the authority of local municipalities to adopt wetlands and flood resilience measures without risk that they will be deemed beyond the authority of the city or town, or be subject to disapproval on preemption grounds. On Cape Cod, for example, the town of Falmouth has begun a coastal resiliency study and planning initiative that includes consideration of discontinuing public services (e.g., roads and utilities) to certain low-lying areas. These initiatives recognize that the taking of private property will also likely be part of any such implemented solution.

In Boston, the city is working on the creation of a Coastal Flood Resilience Overlay District (CFROD), using authority grounded in both zoning and wetlands law, with a proposed new Article 25A to the Boston Zoning Code, which would apply to coastal areas of the city identified as being subject to 1 percent chance flood events with 40 inches of sea level rise. The 40-inch inundation area has been integrated into the city's online Zoning Viewer. In 2019, the Boston Planning and Development Agency (BPDA) had developed and adopted Coastal Flood Risk Design Guidelines (the Guidelines) for new construction and building retrofits, which provide best practices for flood resistant design. Article 25A would formalize the implementation of the Guidelines and would require development projects subject to BPDA's Article 80 Large or Small Project Review to undergo a Resilience Review and comply with the Guidelines. Regarding projects within the CFROD, Article 25A would establish sea level design flood elevation for new construction and retrofits, and establish new dimensional regulations affecting building height, building setbacks, lot coverage and required open space, gross square floor area, as well as new use regulations, limiting use below the sea level design flood elevation to access structures, flood prevention measures, storage and parking accessory to non-residential uses. Comments to the city were due in February 2021. Holland & Knight's Massachusetts-based real estate and environmental attorneys will be monitoring the city's release of a revised draft of the proposed Article 25A.

Conclusion

The moral of the story is that, though multinational, national and state initiatives tend to get the headlines, there are very active and fertile initiatives going on at the local level in Massachusetts. In some cases, the most consequential regulation of land and buildings regarding climate change and carbon limitations is occurring at the municipal level. It remains critical for developers and other real estate professionals to not only keep a close eye on the substance of these initiatives but also to follow the process. As stated above, different processes have different requirements and standards of review. In addition, as the Brookline gas ban precedent demonstrates, the powers that be can be 100 percent in support of the substance of an initiative but still find that the legal process used to implement it is flawed or incorrect.

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