On February 27, the HBRAMA, together with the American Petroleum Institute, NAIOP Massachusetts, the Massachusetts Energy Marketers Association, the International Council of Shopping Centers, the Greater Boston Real Estate Board, the Retailers Association of Massachusetts, the Massachusetts Association of Realtors, the Massachusetts Restaurant Association, and the Propane Gas Association of New England submitted a written objection to Massachusetts Attorney General Maura Healey urging her to invalidate the bylaw adopted at the Town of Brookline Fall 2019 Special Town Meeting that requires the town’s building commissioner to withhold building permits from new buildings (and significant renovations of existing buildings) if those buildings include new natural gas infrastructure for heat, hot water, or certain other purposes.
The association is concerned that the bylaw creates impermissible inconsistencies with respect to the type of heat and hot water infrastructure that may be installed in different communities across Massachusetts. The HBRAMA also believes that wealthy suburban communities will adopt similar bans as a means of either stifling new housing development or increasing its cost so as to exclude individuals and families of modest means.
The law firm Foley Hoag LLP prepared the legal analysis of the Brookline bylaw. A copy of the bylaw can be found here and a copy of the legal analysis can be found here. It concludes that the proposed ban on natural gas infrastructure is preempted by the Massachusetts State Building Code, G.L. c. 143, § 94(a) and 780 C.M.R. § 101.2 (“State Building Code”). The memorandum highlights the view of this diverse coalition of business organization that the bylaw conflicts with the State Building Code’s stated purpose of creating a uniform standard of construction across the 351 cities and towns in the Commonwealth.
Unlike city ordinances, local town bylaws must be reviewed and approved by the Attorney General before they can become effective. The Attorney General has 90 days to approve or disapprove a local bylaw from the date of its submission to her office. If she does not act within said 90 days, the bylaw is presumed approved. At least 15 other communities are reported to be considering adopting a similar ban on new natural gas infrastructure, including the cities of Newton and Cambridge and the towns of Lexington and Arlington.