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Brookline Bylaw Banning New Gas Connections Ruled Invalid

By July 22, 2020 No Comments

In a major victory for the HBRAMA, Massachusetts Attorney General Maura Healey ruled that a bylaw adopted last fall that would have required Brookline’s building commissioner to withhold building permits for new construction and significant renovations of existing buildings, if those buildings include new natural gas connections for heat, hot water, or certain other purposes was invalid.

Unlike city ordinances, local town bylaws must be reviewed and approved by the Attorney General before they can become effective. At least 15 other communities were reported to be considering adopting a similar ban on new natural gas infrastructure, including the towns of Lexington and Arlington.

In her decision, Healey found that the Brookline bylaw prohibiting any permits for construction of certain buildings with fossil fuel infrastructure conflicts with the laws of the Commonwealth because the State Building Code (G.L. c. 143, §95(c), the Gas Code (G.L. c. 142, §13), and the authority of the Department of Public Utilities over the sale and distribution of natural gas (G.L. c. 164) occupy the field of regulation and preempt local bylaws in their respective fields.

The HBRAMA, together with a coalition of other organizations, had submitted a legal memorandum to the Attorney General urging her to strike down the bylaw. The association was concerned that the bylaw would create impermissible inconsistencies with respect to the type of heat and hot water infrastructure that may be used in homes in communities across Massachusetts and increase the cost of new housing.

Although the AG’s ruling does not apply to municipal ordinances, the fact that Brookline’s bylaw conflicts with existing state statutes should discourage cities from adopting similar bans as they would likely fall to a court challenge.

While finding that the bylaw clearly conflicted with the laws or Constitution of the Commonwealth, the Attorney General made plain that if she could, she would have approved the bylaw stating, “If we were permitted to base our determination on policy considerations, we would approve the by-law.”

Supporters of Brookline’s bylaw immediately vowed to consider filing a bill in the Legislature to permit municipalities to adopt local bans on new gas infrastructure notwithstanding the AG’s ruling. The HBRAMA will be prepared to vigorously oppose such an effort at the State House.

The Attorney General’s decision can be found here.