Over 110 attorneys and other professionals were in attendance who work for, with or concerning cities and towns. More will visit the proceedings through their MCLE OnlinePass subscription service.

Mr. McGregor covered significant cases, statutes, regulations, policies, initiatives, and trends in U.S., Massachusetts, and municipal environmental law. The survey ranges from the U.S. Supreme Court, Massachusetts Supreme Judicial Court (SJC) and Appeals Court, U.S. Congress, Massachusetts Legislature, U.S. Environmental Protection Agency (EPA), to the Executive Office of Energy and Environmental Affairs (EEA) and other Massachusetts state agencies. The time covered is 2023 into 2024.

Here are the contents of the PowerPoint:

1. ADMINISTRATIVE LAW

2. AIR POLLUTION

3. ARTICLE 97

4. CAPE COD SEPTICS

5. CLIMATE

6. DRINKING WATER WELLS

7. ENVIRONMENTAL JUSTICE

8. HOME RULE PREEMPTION

9. MBTA COMMUNITIES ZONING

10. MUNICIPAL HARBOR PLANS

11. NEPA

12. PFAS

13. PRIOR PUBLIC USE

14. REGULATORY TAKING

15. STORMWATER

16. SUPERFUND

17. WATER MANAGEMENT ACT

18. WETLANDS—FEDERAL

19. WETLANDS—STATE

20. WETLANDS--DEADLINES

You will find a PDF version of this spresentation  in this site’s Slide Shows. A longer article on all the various subjects is available upon request via the contact form.

 

This will build on the popular 2022 and 2023 Massachusetts Association of Conservation Commissions (MACC) presentations on the subject and Mr. McGregor's presentation to the MA Municipal Lawyers Association (MMLA) last August.

Cities and towns need and want this valuable information, which includes reliable sources of actual wording to revise local Wetland Protection Regulations (without needing to amend the Home Rule Wetland Protection Bylaws) as well as to amend the Bylaws themselves to move a municipality from mere adaptation (reactive) to long-term resilience (proactive). Conservation Commissions have an important leadership regulatory role to play in this progress.

We need to move past mere climate adaptation (changing to fit the weather) and climate mitigation (ameliorating the impacts) to achieve climate resilience (planning and acting ahead to survive and thrive). This is critical to save money, time and people as climate change is upon us. We can and should predict what our cities and towns need to do respond and recover quickly and well. Fortunately, help is available now.

Attendees will receive information on the resource known as the Climate-Smart Wetland Regulations Provisions Website. 

ABOUT THE MSMCP

The MSMCP serves and supports municipal conservation staff and works to raise the level of professionalism through exchanging information, sharing technical and scientific information, promoting professional staffing for all cities and towns within the Commonwealth, and encouraging dialog among contiguous and regionally related Conservation Commissions and their staff. In addition, MSMCP collaborates with the Massachusetts Department of Environmental Protection (MassDEP) and MACC through joint outreach and workshop programs. Visit MSMCP.org

The Plaintiffs are the Valentins, a black couple who have lived in Natick for thirty years. They proposed a condominium project to be located in a predominantly white neighborhood and were denied. Plaintiffs filed suit alleging discrimination based on race, color, and national origin.

In 2005, the Valentins bought the historic property in Natick that is the subject of this suit. In early 2019, the Planning Board (the “Board”), with the help of the Valentins, developed Natick’s Historic Preservation Bylaw (the “Bylaw”). The Bylaw passed Town Meeting with a vote of 96 to 4. 

On August 28, 2019, the Valentins applied for a special permit and site plan approval under the Bylaw. The Valentins proposed to renovate the existing historic house on the lot, reconstruct the historic barn and carriage house, put in underground parking, and add eleven condominium units (including affordable housing units). The proposal complied with all the dimensional requirements of the Bylaw. 

The Board was initially in favor of the proposal. However, after neighbors began a campaign against the project, including allegedly racist comments, the Board back-tracked and requested a revised plan from the Valentins. 

In the fall of 2019, the Valentins submitted a revised plan that eliminated the carriage house and one condominium unit. At the Board meeting to review this revised plan, the Board expressed confusion over how to interpret the Bylaw. 

In December 2019, Town Counsel issued an opinion that the revised plan did adhere to the Bylaw. The Board did not take that advice of Town Counsel, however, and instead determined that the Bylaw restricted the project further. In January 2020, the Board suggested to the Valentins that they withdraw their application without prejudice. The Valentins did withdraw. 

On February 24, 2020, the Valentins renewed their application under the Bylaw. By this time, the neighbors had begun their own campaign to repeal the Bylaw. 

On April 22, 2020, the Board declared two new interpretations of the Bylaw, which had the effect of reducing allowable new construction by one-third. Based on these new interpretations, in October 2020, the Valentins submitted yet another revised plan which reduced the number of condominium units from eleven to seven. 

At the same time, the Chair of the Historic Commission forwarded to the Board neighbors’ concerns that the project was too big. The Chair also endorsed the repeal of the Bylaw. In response to the Valentins’ questions, the Town assured the Valentins that their project would be “vested” (formerly known as grandfathering), and thus would be allowed to proceed even if the Bylaw were repealed. 

On November 4, 2020, the Board voted to approve the massing, scale, and layout of the Valentins’ project, but did not vote on whether to grant the special permit. On November 10, 2020 the Town voted to repeal the Bylaw. 

On December 2, 2020, the Board denied the Valentins’ application solely on the basis of the repeal of the Bylaw. The Board did not consider the project “vested,” despite previously having indicated that it would receive such protection. 

The Plaintiffs made a federal case out of it. They sued under the Fair Housing Act (“FHA”), 42 U.S.C. §§ 3604 and 3617; 42 U.S.C. § 1983 for violations of their constitutional rights to Equal Protection (“EP”); Substantive Due Process (“SDP”); and Procedural Due Process (“PDP”). They also asserted claims against the individual defendants under the Massachusetts Civil Rights Act (“MCRA”), Mass. Gen Laws c. 12, § 11H. 

The Defendants filed a motion to dismiss all the claims. The federal District Court decision carefully parsed those claims and defenses and opened a window into when, how and under what conditions such civil rights claims can be successfully asserted.  

First, the Court considered Section 3604 of the FHA prohibits discrimination in housing based on race, color, and national origin. In order to prove a violation of the FHA, a plaintiff must show either discriminatory intent or disparate impact. A plaintiff must allege that: 

(1) she is a member of a protected class; 

(2) she applied for a permit and was qualified to receive it; 

(3) the permit was denied despite the plaintiff being qualified; and 

(4) the defendant approved the same type of permit for a similarly situated party during a period relatively near in time plaintiff was denied her permit. 

The federal District Court easily found that the Valentins alleged (1), (2), and (3). As for (4), the Valentins alleged that the Town had granted a permit for a church project that was similarly situated because it was a conversion of a historical building in a residential neighborhood into condominium units. 

The church project had been proposed under the 2014 bylaw and not the new Bylaw under which the Valentins applied. The District Court, however, held that the sequence of events and procedural treatments of the two projects was sufficient to provide circumstantial evidence of discriminatory intent. 

The Valentins’ FHA 3604 claim thereby survived the motion to dismiss.

Secondly, Section 3617 of the FHA makes it unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of rights granted under § 3604 (above). To prevail on a claim, a plaintiff must show:

(1) she is a member of a FHA-protected class; 

(2) the plaintiff exercised a right protected by §§ 3603–06 of the FHA; 

(3) the defendants’ conduct was at least partially motivated by intentional discrimination; and 

(4) the defendants’ conduct constituted coercion, intimidation, threat, or interference on account of having exercised, aided, or encouraged others in exercising a right protected by the FHA.

Again, the federal District Court easily concluded that the Valentins met (1), (2), and (3). The Valentins alleged that the Defendants delayed the project, asked for and ignored expert opinions, and misrepresented the consequences of the bylaw repeal on the project. The District Court found these allegations were sufficient for a claim that the Defendants interfered with the Valentins’ rights. 

This FHA 3617 claim likewise survived the motion to dismiss.

Thirdly, the Court considered Plaintiffs’ Equal Protection Claim. The Valentins argued that the Board violated their equal protection right by effectuating the discriminatory intent of the neighborhood by raising procedural hurdles to slow down the permitting process. In support of this claim, they alleged that the Board reversed course on them three times, namely: 

the Board initially looked favorably upon the project, but the reversed course once the neighbors began their campaign against the project;
The Board developed and support the Bylaw and then labeled it confusing and unclear; and
The Board assured the Valentins that their project would be vested and then said the bylaw appeal applied to pre-existing proposals. 
This EP claim thereby survived the motion to dismiss.  The federal District Court ruled that the Valentins stated a plausible claim that the Town’s actions were in violation of their equal protection rights. 

Fourthly, the Court addressed the Valentins’ Substantive Due Process claim. A claim of this sort, under the principles of many First Circuit decisions, may be brought in federal court where the alleged abuse of power ”shocks the conscience.” The usual land use decision making disputes in Massachusetts and New England, even with anomalies and bad feelings, do not rise to this level of civil rights violation. A planning dispute tainted with procedural irregularity and racial animus, however, might be ruled in court to shock the conscience. 

This SDP claim did survive the motion to dismiss.  The federal District Court held that the Valentins had “plausibly alleged procedural irregularities in the number of hearings and delays, along with acquiescence to the racist opposition sufficient to state a substantive due process claim.” 

Fifthly, the Court reviewed Plaintiffs’ Procedural Due Process claim. The Valentins had appealed the denial of the special permit to the Land Court pursuant to the Massachusetts Zoning Act, M.G.L. c. 40A, § 17 and then had voluntarily withdrawn their appeal. The federal District Court in this circumstance held that the judicial review afforded under § 17 was a sufficient post-deprivation remedy. 

This PDP claim, consequently, was dismissed.

Finally, the Court turned to the Valentins’ claim under the Massachusetts Civil Rights Act. This important state statute provides a cause of action against any person who interferes or attempts to interfere with the rights of another by threats, intimidation, or coercion. 

As discussed above, the federal District Court held that the Valentins had plausibly alleged that defendants interfered with their rights. In order to survive a motion to dismiss on their MCRA claim, however, the plaintiffs also had to allege that the interference was by “threats, intimidation, or coercion.” The Court held that a prolonged hearing process was not intimidation or coercion. 

The Court therefore dismissed the Valentins’ MCRA claim. 

In sum, the Valentins’ Fair Housing Act, Equal Protection, and Substantive Due Process legal claims all survived the Town of Natick’s motion to dismiss, while their Procedural Due Process and Massachusetts Civil Rights Act claims were dismissed. 

All in all, this is a significant win for the Valentins and advances federal jurisprudence on the rare situation where municipal land use permit disputes are ruled to rise to the dignity of civil rights claims. 

As of this writing the case is in the discovery phase and those surviving claims will proceed toward trial.

The officials were found to have violated our client’s constitutional right to equal protection on account of their obstruction and interference with Mr. Thyng’s attempts to build a house on a vacant lot in the middle of the block in an already built-out neighborhood. Suit had been filed in 2010 by another firm.

We handled development of the case, motions and discovery, trial preparation, and the two-week jury trial. The judgment for our client was over $1 million for compensatory and punitive damages, attorneys’ fees and costs, and interest. After appeals since 2015, a remand back to the lower court, and stiff negotiations over a year, our client has settled for and received from the City of Quincy a check for $1.35 million. This closes the last chapter in the last book of this saga.

Mr. Thyng had been trying to build a house on his land for 10 years before suit was commenced. After another 11 years of litigation before the Superior Court, Appeals Court, and Supreme Judicial Court, our client now has a judgment for money that has been paid with further assurances of build-ability. Mr. Thyng can now build the house or sell the property with the right to develop.

The crux of the case at trial was whether Quincy officials intentionally treated Mr. Thyng differently than owners of other similarly situated properties, whether there was a rational basis for the difference in treatment, and whether the difference in treatment was due to malicious or bad faith intent to injure him. The jury heard evidence that the City imposed conditions on Mr. Thyng that they did not impose on similarly situated applicants, denied Mr. Thyng’s application for lack of information without specifying what was missing, disapproved the project even after the Massachusetts Department of Environmental Protection issued a permit approving the project, and failed to comply with an order of the Superior Court to conduct a new hearing.

The jury heard evidence that that City officials were “reaching for negative reasons” to deny Mr. Thyng’s application. The jury decided that the Quincy officials had violated Mr. Thyng’s constitutional right to equal protection. After trial, they awarded Mr. Thyng $433,000.00.

The defendants appealed that judgment to the Massachusetts Appeals Court, which in March 2020 affirmed the verdict for the violation of our client’s equal protection rights. It vacated the judgment against one defendant on substantive due process, and remanded the case to the Superior Court for redetermination of damages in light of that change (97 Mass. App. Ct. 1104).

The defendants then petitioned the Supreme Judicial Court for Further Appellate Review (FAR-27632), arguing that the original Complaints and Summonses at the outset of the case in 2010 had not been served within the required time and that an order of the Superior Court back then enlarging the time for service had been erroneous. We served a strong opposition and the Supreme Judicial Court in October 2020 denied the FAR petition.

When the remand began in Superior Court, with debate on whether additional facts should be heard, we entered into serious negotiations with the defendants. In June 2021 the parties reached a settlement agreement. Pursuant to it an Agreement for Judgment was entered providing that the municipality would pay our client $1.35 million. We also insisted on language in the Agreement that City officials would not obstruct, hinder, or delay our client’s construction of the house on his vacant lot (or by his successors and assigns).

The municipality made the payment of $1.35 million to our client on June 17, 2021.

Our previous posts relating to this case may be viewed here:

2020 — Firm's Civil Rights Victory and Jury Verdict Upheld, Now Over $1.5
2018 — McGregor & Legere Client Landowner Wins Million Dollar Land Use Civil Rights Abuse Case

The Appeals Court ruled that the City of Haverhill did not use correct procedures to seek monetary fines for violating a zoning ordinance or bylaw. The Appeals Court looked to Burlington Sand & Gravel v. Harvard, 31 Mass. App. Ct. 261, 265 (1991) which ruled that the Zoning Act does not specify any process because the Legislature did not intend to authorize imposition of civil penalties for violations of zoning bylaws and ordinances, and, in fact, provided only for injunctive relief.

The Appeals Court noted that Burlington Sand & Gravel v. Harvard established the procedures for a municipality to impose monetary “fines”, or, really, criminal penalties for zoning violations: by initiating a criminal proceeding through either filing a complaint in District Court or seeking an indictment in the Superior Court under G.L. c. 40, § 21 (providing for assessment of criminal penalties for violation of a local bylaw or ordinance). Also, if the municipality has adopted so-called G.L. c. 40, 21D providing for noncriminal disposition by issuing citations, then that is a third method available that begins as a civil matter but can become a criminal matter if the violator does not pay the amount specified in the 21D citation or “ticket” issued to him or her.

Here, the Appeals Court ruled that Haverhill’s filing of a counterclaim in a civil action brought by the alleged offender was not a permitted way to seek fines for violating zoning laws. The Court also ruled that the Building Inspector’s cease-and-desist letters lacked the jurisdictional and notice provisions to use 21D, so were not proper notices under that statute.

Additionally, the Appeals Court held that the City failed to follow the procedures under G.L. c. 148A, § 2 to impose civil penalties for violations of the State Building Code as an alternative to initiating criminal proceedings. Under the proper procedure:

• The notice of violation must specify the offense charged and the time and place of the violation;
• The notice must include a schedule for assessment of fines;
• For a continuing violation, the notice must indicate that it must be corrected within 24 hours;
• The alleged violator must return the notice to the municipal hearing officer and, within 21 days, either pay the full assessed fines or request a hearing before the municipal hearing officer.

The Appeals Court noted that the purpose of these procedures, like those for violation of zoning bylaws and those in c. 40, § 21D, is to give adequate notice of the violation and the amount of any proposed fine, as well as provide for a relatively efficient administrative process to either pay the fine or dispute it and obtain a hearing.

The Appeals Court found that the Building Inspector’s cease-and-desist letters to the plaintiff did not identify any amount of fine or state that fines would be imposed for work done prior to the date of the letters. These letters only spoke of fines being imposed if work continued on residential lots for which the plaintiff, a developer, lacked permits. The City withheld permits for these lots because it maintained the plaintiff had agreed to build, prior to starting work, a water pressure booster station in his residential subdivision.

The developer commenced a civil action in Superior Court to force the City to issue the permits, alleging he had to build the water booster station later, prior to occupancy rather than prior to construction.

Sometime after suit, the City Building Inspector filed a counterclaim for fines pursuant to the State Building Code and Haverhill’s zoning ordinances. The motion judge granted summary judgment to the City and then held a hearing on monetary amounts. The City sought fines of $1,000 per violation of the State Building Code (per day, per lot) and fines of $300 per day of violation of the zoning ordinance. Notably, the City sought amounts only for violations on days before its letters ordering the developer to stop work or use of a maintenance building.

After dismissing the plaintiff’s claim for declaratory judgment for lack of standing because he no longer owned the development (having lost it through foreclosure), the Appeals Court addressed his challenge to the fines, mainly on the basis that the City had not followed proper procedures to impose and calculate the fines.

The Appeals Court acknowledged that “the result here is unappetizing,” since the City could have followed the correct procedures. It also left for another day the questions of whether, and how, monetary penalties could be imposed for past conduct on a daily basis and for how far into the past, though surmised that it can be done because “A person should not be able to violate the State building code and local bylaws without risk of civil penalty, so long as they fall into line once they are caught.to encourage compliance with the local zoning bylaws and State Building Code.”

Officials charged with enforcing local zoning requirements who wish to do so by imposing monetary sanctions in addition to or instead of injunctive relief should be sure to adhere to either of the two main routes available. A third route is available if the municipality has adopted the non-criminal disposition authority under G.L. c. 40A, § 21D in which specified officials issue citations or “tickets” for relatively small but effective amounts. Similarly, officials seeking civil penalties for violations of the State Building Code must sure to follow the correct procedures.

About half of the 351 municipalities in the Commonwealth currently have their own wetlands protection bylaw or ordinance (collectively, “bylaw”), which is administered by the city’s or town’s conservation commission in conjunction with the state Wetlands Protection Act (the “WPA”).

Some of these communities already have provisions that address climate change. Others are contemplating amending their existing bylaws and regulations to do so. Still others, like the City of Boston, are considering adopting for the first time a local wetland permitting program.

Wetland resource areas, already regulated to protect their ability to mitigate flooding and storm damage as well as to protect surface and groundwater quality, are naturally poised to help mitigate the similar effects of climate change on a community. To preserve these functions, municipalities are placing a greater emphasis on regulating work in or near wetland resource areas, such as marshes, vegetated wetlands, floodplains, beaches, banks, dunes, rivers, streams, lakes, and ponds.

A municipality can adopt a wetland bylaw under its Home Rule authority as long as the provisions are more stringent than the WPA. Being more stringent might include protecting additional interests, or functions, beyond the eight protected by the WPA, such as protection of wildlife, natural scenic beauty, or recreation. It also might mean regulating a greater geographic area than the Act, such as isolated (not just bordering) vegetated wetlands, areas within 100 feet of water bodies, or vernal pools (even if outside a vegetated wetland). It also might mean having stricter requirements (or “performance standards”) such as a mitigation ratio of greater than the 1:1 generally required in the WPA and MassDEP’s implementing Wetland Regulations (310 CMR 10.00).

These are but a few of the myriad of ways a wetland bylaw and the regulations promulgated thereunder can be more stringent than the WPA and its regulations.

With sea level rise being one of the most commonly discussed impacts of climate change, it is not surprising that several coastal towns have provisions in their wetlands bylaws to consider this during project review.

For instance, Duxbury requires the design and construction of projects in the FEMA- designated “A-zone” portion of the 100-year floodplain to take into account sea level rise at a rate of 2.8 feet per 100 years. Hingham has a similar requirement, but also applies it to projects proposed in the velocity zone (“V-zone”). Hingham specifies that a rate of 1 foot per 100 years “or other credible evidence” such as from the Intergovernmental Panel on Climate Change be used. Falmouth has one rate (“at least” 1 foot per 100 years) for work in AE-zones and a higher rate (“at least” 2 feet per 100 years) for work in the VE-zone.

As sea levels rise, coastal wetland resource areas are predicted to shift landward. Scituate requires landward migration of resource areas in response to sea level rise to be incorporated into the design and construction of structures proposed in the coastal floodplain. The lowest floor of a structure in a FEMA-mapped AE-zone must be at least 1 foot above the base elevation, and the lowest horizontal structural element must be at least 2 feet above the base flood elevation – unless a higher elevation is determined by the Commission. Falmouth says that any activity within the 10-year floodplain cannot have an adverse effect by impeding the landward migration of other resource areas within this sub-area of the floodplain.

Recognizing that FEMA’s 100-year floodplain mapping can be inaccurate or outdated, many coastal communities allow the coastal floodplain, usually called Land Subject to Coastal Storm Flowage (“LSCSF”), to be defined by the FEMA maps, surge of record, or flood of record, whichever is greater. Similarly, recognizing that coastal bank function as a barrier to coastal storm flooding, some communities define the top of coastal bank at a higher point than MassDEP would under the WPA.

Inland communities are also using their wetland permitting programs to build climate change resiliency. The Arlington Conservation Commission recently added to its wetland regulations a new “Climate Change Resilience” section which requires an applicant, “to the extent practicable and applicable as determined solely by the Commission, integrate considerations of adaptation planning into their project to promote climate change resilience so as to protect and promote resource area values into the future.”

An applicant must address in a narrative: 1. Design considerations to limit storm and flood damage from extreme weather events; 2. Storm water surface runoff mitigation and reduction of impervious surfaces; 3. Vegetation planting plans to improve climate change resiliency; and 4. Protection of proposed structures to minimize damage from potential climate change impacts. With the introduction of new terms, the Commission added the definitions to its regulations, such as “adaptation”, “extreme weather event”, “impacts of climate change”, and “resilience.”

Many eyes are now on the City of Boston as it considers enacting its first wetland protection ordinance. Entitled, “Ordinance Protecting Local Wetlands and Promoting Climate Change Adaptation in the City of Boston”, the proposed draft explicitly and comprehensively integrates climate change resiliency measures into a local wetland permitting program. The current draft draws on approaches and definitions of other communities and expands on them. For instance, LSCSF is defined not as the more common FEMA 100-year floodplain, but the FEMA 500-year floodplain. “Special Transition Areas” landward of salt marsh, barrier beaches and coastal dunes are created to allow transition of those areas landward, so must be kept in a natural state as much as possible. Stormwater calculations must be based on “best available measures of precipitation” frequency. Also, the Conservation Commission is directed to consider eight factors when considering a project’s adaptation to potential climate change impacts.

In conclusion, Massachusetts cities and towns are not waiting for the state or federal governments to begin enacting laws to help build climate change resilience in their communities, but are turning to their own wetland regulations.

Most recently our principals Luke Legere and Gregor McGregor addressed the MMLA membership on September 15 at the Red Jacket Resort in West Yarmouth, MA as part of the 2016 meeting. You can watch our PowerPoint in its entirety.

Download "Massachusetts Environmental Law Update" >>
(Registration required)

Our PowerPoint covers climate change, DEP regulatory reforms, energy law, hazardous materials, parklands and Article 97, pollution insurance, regulatory takings cases, tidelands and Chapter 91, underground tanks, 40B affordable housing, stormwater rules, and wetlands law and procedures.

Other panels at the three day MMLA meeting discussed federal and state constitutional law court cases, the MA marijuana referendum question (since enacted), land use and zoning, education law cases, and the toughened MA public records law (effective January 1, 2017).

Our firm works for a variety of business, landowner, developer, government. non-profit, and citizen clients who need to understand, implement or comply with municipal laws. They hire us for a range of legal services on permits and licenses, enforcement and defense, interpretations and rulings, changes to bylaws and ordinances, and of course litigation in state and federal courts.

The MMLA (formerly the City Solicitors & Town Counsel Association) is the municipal law bar association for MA. Since 1946 it has served cities and towns with legal advice, publications, and educational events. The members are public officials and attorneys whose practices include legal services to cities and towns or devote much of their work to advancing municipal law.

On March 15, 2017, Mr. McGregor and Mr. Legere will join the faculty of the Annual Conference on Municipal Law put on by Massachusetts Continuing Legal Education, Inc. (MCLE). There they will present their Update on Environmental Law for the audience.

The statutes amended are many and varied, modifications that real estate attorneys and other professionals and their clients should know about. Here are select features of HB 4565, (“MMA”) with a focus on changes in municipal environmental and land use laws.

Local Agricultural Commissions are modified by three separate sections of the MMA. Section 23 of the MMA modified G.L. c 40 by adding § 8(L), which gives municipalities the explicit authority to establish a municipal agricultural commission, and further outlines the authority of such a commission. Section 215 of the MMA modified G.L. 111 § 31 to accommodate the existence of any subsequently created municipal agricultural commissions. Finally, Section 243 of the MMA garners the same authority established in G.L. c. 40 for new municipal agricultural commissions, to ones that predated the legislation.

Municipal Procurements are affected by sections 2-4, and 6-12 of the MMA. These changes increase the dollar threshold for contracts requiring less than full competitive bidding. Sections 2-4 of the MMA alter G.L. 30 § 39M by replacing subsection (a) with a new language that mandates all public construction valued at less than $10,000 be obtained through the sound business practices defined in G.L. c. 30B §2. In addition, contracts for construction that are above $10,000 must be awarded to the lowest eligible responsible bidder. The new § 39M (a) also includes specifics regarding notice requirements, and blanket contracts.

Sections 6-12 of the MMA also alter the dollar threshold for contracts. G.L. 30 § 4 is modified so procurement for a supply or service for between $10,000 and $50,000 needs at least three written quotes from providers.

Prior to the MMA, under G.L. c. 30B § 5 (which governs competitive sealed bidding procedures) procurement contracts must have been valued at a minimum of $35,000 to fall under the listed procedures. The MMA altered this provision so the procurement contracts must be valued at least $50,000 to be required to conform to the competitive sealed bidding procedures set forth in G.L. c. 30B § 5. The MMA also altered G.L. c. 30B § 6, which now allows a chief procurement officer to enter into procurement contracts in the amount of $50,000 using competitive sealed proposals—a bump from the previous dollar threshold of $35,000.

A municipality’s ability to deny local licenses and permits to delinquent taxpayers has been altered by sections 37 and 38 of the MMA. Prior law allowed municipalities to deny local licenses and permits to taxpayers that had neglected or refused to pay taxes for at least one year. This new change allows municipalities to a mirror a “good standing” requirement, and removed the one year waiting period.

The MMA also alters G.L. c. 40 by adding a new § 60B. This new section allows adoption and implementation of a workforce housing special tax assessment (“WH-STA”) plan, to “encourage and facilitate incased development of middle income housing.” The new provision goes on to outline the applicability and prescribed parameters of such a plan.

The MMA also amends G.L. c. 59 § 5 by adding clause fifty-eighth, which mandates that taxes on property included in a WH-STA plan only be assessed to the portion of property not exempt under G.L. c. 40 § 60B.

The Municipal Affordable Housing Trust Fund Law, G.L. c 44 § 55C, is amended by the MMA so that G.L. c. 44B funds, from the Community Preservation Act (“CPA”), appropriated to local affordable housing trust funds are subject to the same restrictions as other CPA monies. In addition, at the end of each fiscal year the Municipal Affordable Housing Trust must ensure that all uses of 44B funds are reported to the community preservation committee so they are included in the CP-3 form to the department of revenue.

The newly enacted MMA also modifies Community Preservation Act surcharge exemptions in G.L. c. 44B § 3(e). In doing so, the MMA set a deadline for persons submitting applications for surcharge exemptions, which is the same deadline set under G.L. c. 59, §59.

G.L. c. 58, § 8C, which governs Affordable Housing and Real Estate Abatements, is modified to allow a municipality to establish an agreement regarding an abatement of up to 75% of the outstanding real estate tax obligations and up to 100% of the outstanding interest and costs on the sites.

The MMA imposes some interesting changes to G.L. c. 61A. The MMA created G.L. c. 61A, § 2A, which allows installation and operation of renewable energy on c. 61A land. However, there are several caveats for the location of the energy production, the amount of energy that can be produced, and the application of the energy produced.

In addition, G.L. c. 61A, § 13 was amended regarding the application of roll-back taxes, so they will now apply to agricultural land used or converted to renewable energy generation under the new § 2A.

The MMA also amends Section 276 of Chapter 165 of the Acts of 2014, to extend a special exemption from the annual gross sales requirement for cranberry bogs from 2017, to 2020. Essentially, the cranberry bog owners don’t have to meet minimum requirements for crop production and sales to maintain the tax benefits of c. 61A.

The amended statutory provisions listed above are just a sample of the many changes created by the MMA—the complete text can be found here. Not all provisions of the MMA are effective simultaneously, so landowners, developers, lenders, investors and of course their attorneys should ascertain the timelines associated with the most noteworthy amendments.

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...