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New Developments in Environmental Law

New Law Means Less Control for Municipalities Featured

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On August 10, 2016 Governor Baker signed HB 4569 into law. It is titled, “An Act Relative to Job Creation and Workforce Development,” and appears as Chapter 219 of the Acts of 2016. Despite declining to approve two sections of the Bill, Governor Baker approved Section 48, which will have confusing implications for environmental regulation in municipalities, and likely lead to a slew of doubt, disputes, and even lawsuits.

The so-called Massachusetts Development Act (“MDA”) is touted as “an important step” in the implementation of Massachusetts’ economic development plan. According to the bill itself, the new law’s overall purpose is to finance “improvements” to the Commonwealth’s  economic infrastructure and promote economic opportunity, and is “necessary for the immediate preservation of the public convenience.”

The public convenience, however, comes at a price—namely, the ability of municipalities to enforce heightened environmental regulations within their jurisdiction.

While Governor Baker declined to approve Sections 36 and 131 of the MDA, (sections that would have imposed new Community Benefit Districts, and created a regional transit authority, respectively) Section 48 slipped into the new legislation unharmed. This provision will undermine local environmental regulations. You will find it as G.L. c.
40R §5(f)(7).

The essence of Section 48 is that several types of development projects “shall not be subject to any municipal environmental or health ordinances, bylaws or regulations that exceed applicable requirements of state law or regulation.”

More specifically, Section 48 excuses smart growth and starter home zoning districts from the potential limitations caused by building permits, or local moratoriums on issuing such permits. In addition to this wholesale reference, proposed starter home zoning districts are to be exempt from any municipal environmental or health ordinance, bylaw, or regulation that exceeds state requirements. While there are exceptions to this last provision, they are limited by both site and project type.

Section 48 of the MDA will take effect on January 1, 2017.

This poorly conceived and executed section usurps municipal regulatory authority to set parameters and measures for environmental health within their own jurisdictions. As a result, the new provision will create turmoil concerning its application to land and resources which are subject to stricter environmental regulations than required by state. The result? There will be lots for lawyers to do.  

The full text of Chapter 219 of the Acts of 2016 can be found here...

Read 2621 times Last modified on Tuesday, 03 January 2017 14:47
Olympia A. Bowker, Esq.

OLYMPIA A. BOWKER, Esq. was formerly an Associate at McGregor & Legere, P.C. in Boston. She helped clients with a broad range of environmental, land use, zoning, and regulatory matters in both administrative and legal forums.

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