Massachusetts

Constitutional Provisions

Mass. Const. art. LXXXIX, § 1, often referred to as the “Home Rule Amendment,” delegates home rule authority to cities and towns that have adopted a charter. The delegation of home rule authority in sections 6 and 8 also apply to non-charter cities. Thus, all cities and towns in Massachusetts, regardless of whether they have adopted a home rule charter, have some degree of home rule authority subject to certain limitations.

Mass. Const. art. LXXXIX, § 1: “It is the intention of this article . . . to grant and confirm to the people of every city and town the right of self-government in local matters . . .”

Mass. Const. art. LXXXIX, § 2: This section authorizes cities and towns to adopt or revise a charter, so long as the provisions are not “inconsistent” with the state constitution or laws.

Mass. Const. art. LXXXIX, § 6: “Any city or town may, by the adoption, amendment, or repeal of local ordinances or by-laws, exercise any power or function which the general court has power to confer upon it, which is not inconsistent with the constitution or laws enacted by the general court . . . and which is not denied, either expressly or by clear implication, to the city or town by its charter. This section shall apply to every city and town, whether or not it has adopted a charter pursuant to section three.”

Mass. Const. art. LXXXIX, § 7: “Nothing in this article shall be deemed to grant to any city or town the power to (1) regulate elections other than those prescribed by sections three and four; (2) to levy, assess and collect taxes; (3) to borrow money or pledge the credit of the city or town; (4) to dispose of park land; (5) to enact private or civil law governing civil relationships except as an incident to an exercise of an independent municipal power; or (6) to define and provide for the punishment of a felony or to impose imprisonment as a punishment for any violation of law . . .”

Mass. Const. art. LXXXIX, § 8: “The general court shall have the power to act in relation to cities and towns, but only by general laws which apply alike to all cities or to all towns, or to all cities and towns, or to a class of not fewer than two, and by special laws” only under certain circumstances detailed in section 8. “This section shall apply to every city and town whether or not it has adopted a charter pursuant to section three.”

Statutory Provisions

Mass. Gen. Laws ch. 43B, §§ 1-20: These sections comprise the Home Rule Procedures Act. This Act reiterates municipal authority to adopt, revise, and amend charters and prescribes procedures by which to do so. The Home Rules Procedures Act, along with the constitutional Home Rule Amendment, are cited as the two main sources of home rule authority.

Mass. Gen. Laws ch. 40, § 21: One of the most sweeping grants of power to local governments is with their so-called police powers: “[Cities and] Towns may . . . make such ordinances and by-laws, not repugnant to law, as they may judge most conducive to their welfare.” For example, this includes authority “[f]or directing and managing their prudential affairs, preserving peace and good order, and maintaining their internal police” or “[f]or regulating the inspection, materials, construction, installation, alteration or use of pipes, fittings and fixtures through which gas is supplied within buildings and other structures,” among other things. Id. § 21(1), 21(18).

Mass. Gen. Laws ch. 40, §§ 1-69: In addition to the police powers, chapter 40 generally defines the powers and duties of cities and towns, such as the power to hold and convey property, make contracts, appropriate money, etc. Generally speaking, “[c]ities and towns shall be bodies corporate, and . . . shall have the powers, exercise the privileges and be subject to the duties and liabilities provided in the several acts establishing them and in the acts relating thereto. Except as otherwise expressly provided, cities shall have all the powers of towns and such additional powers as are granted to them by their charters or by general or special law, and all laws relative to towns shall apply to cities.” Id. § 1.

Mass. Gen. Laws ch. 40, § 32: “[B]efore a [town] by-law takes effect it shall be approved by the attorney general.” This provision does not substantively alter towns’ authority to enact local laws (i.e., by-laws). If the Attorney General disapproves a local law, it must provide the town with its reasoning. The Attorney General’s decision is also subject to judicial review.³

Massachusetts has fifty cities and 301 towns, many of which have adopted charters pursuant to section 2 of the Home Rule Amendment. In addition to the Home Rule Procedures Act, which provides procedures for adopting and amending city and town charters, chapter 43 of the Massachusetts General Laws further regulates city charters. For example, this chapter addresses topics such as voting, possible governmental structures, procedures for passing ordinances, and more.City charters construe local power broadly under their home rule authority. For example, the City of Lynn’s Charter describes its powers with the following language: “Subject only to express limitations on the exercise of any power or function by a city in the constitution or statutes of the commonwealth, it is the intent and the purpose of the voters of Lynn, through the adoption of the charter to secure for the city all powers it is possible to secure under the constitution and statutes of the commonwealth, as fully and as completely as though each such power were specifically and individually enumerated herein.”⁴

Local laws that are otherwise properly enacted pursuant to a municipality’s home rule authority can still be invalid if preempted by state law. Preemption in Massachusetts occurs when a local ordinance is “inconsistent” with a general state law.⁵ Inconsistent ordinances are prohibited by the constitutional Home Rule Amendment and statutory home rule provisions. See, e.g., Bloom v. City of Worcester, 293 N.E.2d 268, 276 (Mass. 1973) (analyzing “the meaning of the word ‘inconsistent’ in § 13 of the Home Rule Procedures Act, and § 6 of the Home Rule Amendment”).

In determining whether a local law is “inconsistent” with a general state law, courts require that there be a legislative intent to preempt local law. Although this intent can be express or implied from the circumstances, it must be clear. Town of Wendell v. Att’y Gen., 476 N.E.2d 585, 589 (Mass. 1985).

Express Preemption

Express preemption occurs when the General Court includes explicit preemptive language in a state law. For example, a Massachusetts bill that passed in 2018 regarding the use of tobacco and nicotine includes expressly preemptive language:

This act shall preempt, supersede or nullify any inconsistent, contrary or conflicting state or local law relating to the minimum sales age to purchase tobacco products . . . This act shall not otherwise preempt the authority of any city or town to enact any ordinance, by-law or any fire, health or safety regulation that limits or prohibits the purchase of tobacco products.

Mass. Session Law ch. 157, § 22 (2018).

Field Preemption

Field preemption occurs when a state statute impliedly occupies an entire legislative field, leaving no room for local regulation. See Town of Dartmouth v. Greater New Bedford Regional Vocational Technical High School District, 461 Mass. 366, 375–76 (2012). Courts can “infer that the Legislature intended to preempt the field because legislation on the subject is so comprehensive that any local enactment would frustrate the statute’s purpose.” Boston Gas Co. v. City of Somerville, 652 N.E.2d 132, 134 (Mass. 1995).

For example, in Town of Wayland v. Att’y Gen., the court held that local pesticide laws are preempted by the Massachusetts Pesticide Control Act because the “clear language [of the law] demonstrates a legislative intent to occupy the field at the state level in the regulation of the use and application of ‘pesticides.’” 2014 Mass. Super. LEXIS 35, at *9 (2014).

Conflict Preemption

Conflict preemption occurs when a local and state law are in direct conflict with each other. A court may find that a local ordinance is preempted if it is “facially inconsistent” with a state law. Del Duca v. Town Adm’r, 368 Mass. 1, 9 (1975). Like with field preemption, courts will look at “whether the local regulation would somehow frustrate the purpose of the statute so as to warrant an inference that the Legislature intended to preempt the subject” to “determine whether a local ordinance is inconsistent with a statute.” Boston Gas Co., 652 N.E.2d at 134.

For example, in Boston Gas Co. v. City of Somerville, the court held a local ordinance related to street excavation by utility companies was preempted by state law governing the sale of gas and electricity by public utilities because it was inconsistent with the state law by imposing requirements that the state law did not. Boston Gas Co., 652 N.E.2d at 132.

Building Codes. Mass. Gen. Laws ch. 40A, § 3: Prohibits local requirements relating to “the use of materials, or methods of construction of structures regulated by the state building code” and “the interior area of a single family residential building.” The state building code covers energy in addition to construction requirements, which implicates energy use and efficiency.

Fuel. Mass. Gen. Laws ch. 142, § 2: States that the Fuel Gas Code (sections 1-22) “shall apply to all cities and towns.” The code has not been held to field preempt local law but, under Massachusetts preemption principles, local law cannot be “inconsistent” with specific provisions of this state-wide code.

Massachusetts has also passed several laws combatting climate change, one significant law of which is listed below. These laws do not have express preemption clauses and courts have not considered the question of whether these laws would preempt local laws. 

Emissions Reduction. Mass. Gen. Laws ch. 21N: The Global Warming Solutions Act directs state agencies to “promulgate regulations regarding sources or categories of sources that emit greenhouse gases in order to achieve the greenhouse gas emissions limits and sublimits and implement the roadmap plans required by this chapter.” Id. § 6.

An Attorney General’s opinion issued in 2020 concluded that the state building code, gas code, and public utility laws may preempt local bans on natural gas. In 2019, the Town of Brookline sought to advance a local law prohibiting natural gas connections in new buildings and, as required by state law, the town submitted it to the Attorney General for approval. The Attorney General’s opinion concluded that the local law conflicts with portions of the state building code, gas code, and laws that authorize the Department of Public Utilities to regulate natural gas and is thus preempted. Although this opinion is not binding on cities, it may have a chilling effect on cities interested in adopting a similar ban for fear that a Massachusetts court would come to the same conclusion that the Attorney General did.

Courts have described Massachusetts’ Home Rule Amendment as “the strongest type of home rule.” Bloom, 293 N.E.2d at 273 n.4. As a general principle, “municipal action is presumed to be valid” by courts. Connors v. City of Boston, 714 N.E.2d 335, 337 (Mass. 1999). Still, local law that is “inconsistent” with state law can be preempted to “preserve[] the Commonwealth’s right to legislate with respect to State, regional, and general matters.” Clean Harbors of Braintree, Inc. v. Bd. of Health, 616 N.E.2d 78, 82–83 (Mass. 1993).

The cases below provide further detail on how Massachusetts courts interpret the scope of municipal home rule authority under the constitutional amendment and state statutes, and the ability of state law to preempt “inconsistent” local laws.

• Clean Harbors of Braintree, Inc. v. Bd. of Health, 616 N.E.2d 78 (Mass. 1993): This case addresses the scope of home rule authority by interpreting section 8 of the Home Rule Amendment and suggesting a limitation on municipalities’ power. One of the issues in the case was whether a state law that applied only to only one hazardous waste treatment facility in a Massachusetts town violated section 8 of the Home Rule Amendment, which provides that the state legislature “shall have the power to act in relation to cities and towns, but only by general laws which apply alike to all cities or to all towns, or to all cities and towns, or to a class of not fewer than two.” Section 8 limits the state legislature’s ability to pass “special laws” that interfere with home rule authority. In Clean Harbors, the court wrote, “[t]he Home Rule Amendment preserves the right of municipalities to self-government in ‘local matters,’ but preserves the Commonwealth’s right to legislate with respect to State, regional, and general matters . . . The Legislature may act on matters of State, regional, or general concern, even though the action may have special effect on one or more individual cities or towns.” Id. at 82–83. In other words, the fact that a law affects only one city or town does not automatically mean that it is a prohibited “special law;” it may be considered a general law if it relates to “state, regional, or general matters.” The court held that the state law on hazardous waste treatment “does not violate the Home Rule Amendment, even if the amendment applies only to the hazardous waste treatment facility in [one town].” Id. at 83. In effect, this case expands the scope of state laws that can supersede local authority. 

• Bloom v. City of Worcester, 293 N.E.2d 268 (Mass. 1973): In this case, the Massachusetts Supreme Judicial Court explains the standard for “inconsistency” giving rise to preemption, especially with respect to field preemption. The local ordinance at issue created a local human rights commission and conferred on it the power to hold hearings and issue subpoenas. The ordinance was challenged on the grounds that it was preempted by a state law which also covered human rights and issuing subpoenas. The court offers a standard for “inconsistent” state and local laws, explaining that “the exercise of any local power or function on the same subject” covered by a state law may be preempted “because otherwise the legislative purpose of that statute would be frustrated.” Id. at 280. However, the court clarifies that state legislation on the same subject does not necessarily preempt local law “[i]f the state legislative purpose can be achieved in the face of a local ordinance or by-law on the same subject,” in which case “the local ordinance or by-law is not inconsistent with the State legislation.” Id. at 280–81. The court upheld the ordinance as valid.

• Boston Gas Co. v. City of Somerville, 652 N.E.2d 132 (Mass. 1995): In this case, the Massachusetts Supreme Judicial Court invalidated a local law under both field and conflict preemption principles. The case arose when a gas company challenged a Somerville ordinance on the grounds that it was preempted by state law governing the sale of gas and electricity by public utilities. The court held that the ordinance was field preempted because “[g]iven the comprehensive nature of [the state] statute . . . the Legislature intended to preempt local entities from enacting legislation in this area.” Id. at 134. The court also held that the ordinance was conflict preempted because “the ordinance is inconsistent with particular provisions of the statute and the regulation of the Department of Public Utilities.” Id. The court’s issue with the ordinance was that it imposed requirements on the gas company that the state law did not. Thus, it found that “the ordinance conflicts with the statutory scheme for regulating public utilities.” Id. In particular, the Boston Gascourt held that ordinances imposing additional requirements that a state law can be sufficient for a finding that the ordinance is “inconsistent” with, and therefore preempted by, the state law. Id.

• Six Brothers, Inc. v. Brookline, 228 N.E.3d 565 (Mass. 2024): The Massachusetts Supreme Judicial Court considered whether a local bylaw, which partially bans the sale of tobacco based on birth year, is preempted by a Massachusetts law that set a minimum age requirement for the sale of tobacco products. The state law “expressly preempts any ‘inconsistent, contrary or conflicting’ local law related to the Statewide minimum age provision, but otherwise affirms the authority of local communities to limit and to ban the sale of tobacco products within their municipalities.” Id. at 569. The bylaw separates citizens into two groups based on birth year and prohibits the sale of tobacco products to one of the groups (regardless of how old the members of that group become). The court held that the local law is not preempted by the state law because it does not conflict with the state minimum age requirement and falls within the type of local regulation that is expressly permitted by the state law. Id.

• Roma, III, Ltd. v. Bd. of Appeals of Rockport, 88 N.E.3d 269 (Mass. 2018): The Massachusetts Supreme Judicial Court considered whether a local zoning ordinance prohibiting use of land for a private heliport was preempted by the state aeronautics laws with “the legislative purpose of ‘foster[ing] . . . private flying.’” Id. at 278. The court’s analysis focuses on whether the state’s laws present the requisite intent to preempt. It concluded that they do not for two reasons. First, there is no evidence to suggest that the Legislature considered private landing areas “to be necessary, or even central, to [its] mission of fostering private flying.” Id. Therefore, local laws that prohibit the use of land for such private landings are “insufficient to warrant a finding of preemption where it would not significantly impair the State’s legislative purpose of fostering private flying.” Id. Second, the fact that land use “has traditionally been a matter of local regulation” is relevant to the intent inquiry. Id. Because of this tradition, the court declined to “infer that the enactment of the aeronautics code reflects a clear legislative intent to preempt all local zoning bylaws that might affect [private landings] based on the risk of frustrating the legislative purpose of fostering private flying.” Id.

Other Relevant Cases

Opinion of the Massachusetts Attorney General (July 21, 2020): Although not case law, this opinion of the state Attorney General is a significant decision related to preemption in the climate context. In 2019, the Town of Brookline sought to advance a local law prohibiting natural gas connections in new buildings and, as required by state law, the town submitted it to the Attorney General for approval. The Attorney General concluded that the local law was conflict preempted by three sources of state law: (1) “the State Building Code, which establishes comprehensive statewide standards for building construction and ‘is intended to occupy the field of building regulation;’” (2) “the Gas Code and G.L. c. 142, § 13 in that it creates a new reason to deny a gas permit;” and (3) “G.L. c. 164 through which the Massachusetts Department of Public Utilities [] comprehensively regulates the sale and distribution of natural gas in the Commonwealth.” Because cities are not required to submit local laws to the Attorney General for approval, as towns are, they are not technically bound by this decision. However, the opinion has thus far been respected by cities.

Massachusetts has a statewide building code, which was adopted by the state Board of Building Regulations and Standards (BBRS) pursuant to state law, Mass. Gen. Laws ch. 143, § 93. Local governments have only limited means by which to customize the building code in their jurisdictions. The statewide building code follows the 2021 edition of the International Code Council model codes.⁶ It includes codes related to energy (e.g., energy use and energy efficiency) in addition to construction requirements. It applies to “all towns, cities, state agencies or authorities” in the state and covers privately-owned and most state-owned buildings. Id.§ 2A; 780 C.M.R. 102. The code is comprised of two main parts: the base code for larger buildings and the residential code for smaller residences.

Massachusetts state laws preempt some local activity that interferes with the statewide building code through an express limitation on the subject of zoning ordinances. Mass. Gen. Laws ch. 40A, § 3. Specifically, state law preempts local zoning regulation relating to “the use of materials, or methods of construction of structures regulated by the state building code [and] the interior area of a single family residential building.” Id. State courts have held that the State Building Code field preempts local laws on the “same subject” as the state code. See, e.g., St. George Greek Orthodox Cathedral of W. Mass. v. Fire Dep’t, 967 N.E.2d 127, 133–34 (Mass. 2012). To avoid being preempted, municipalities in the past have sought to implement climate policy through zoning incentives rather than regulations. For example, the Town of Hull offers a $500 rebate on permit fees for new buildings in certain districts “that are adapted to and resilient to the impacts of climate change.” Zoning By-law, Town of Hull art. III § 39B(12.2) (2018). Additionally, the statewide code does not contain building performance standards,⁷ so local law on that subject may not be preempted as the “same subject” of the state building code. For example, Boston has adopted the Building Emissions Reduction and Disclosure Ordinance (BERDO), which sets certain emissions reduction requirements for large existing buildings.

Massachusetts state law provides three exceptions to the application of the statewide building code. First, municipalities have the option to adopt the “Stretch Code,” which is a more stringent version of the state energy code. 225 C.M.R. 22.00 (stretch code for low-rise residential construction); 225 C.M.R. 23.00 (stretch code for all other construction). More than 250 cities have adopted the stretch code.⁸ Second, municipalities can recommend local amendments to the state code with “more restrictive standards” for approval by the state Board by demonstrating that “special conditions prevailing” in the city justify such standards. Mass. Gen. Laws ch. 143, § 98. The state Board may then choose to promulgate the amendment if the local change would conform with both “accepted national and local engineering and fire prevention practices” and “the general purposes of a statewide building code.” Id. Third, in addition to the Stretch Code, municipalities also have the option to adopt the “Specialized Code,” more recently created by Mass. Gen. Laws ch. 25A, § 6. The Specialized Code is “designed to ensure new construction that is consistent with a net-zero Massachusetts economy in 2050, primarily through a combination of energy efficiency, that it in turn enables reduced heating loads, and efficient electrification.”⁹ The Stretch and Specialized Codes are similar in purpose but have some distinctions in application and requirements.¹⁰

As noted above, an Attorney General’s opinion issued in 2020 suggests that the state building code, along with portions of the case code and public utility laws, may preempt local bans on natural gas. Although that issue has not been specifically addressed by a court, the Attorney General’s opinion has been largely respected. However, local bans on natural gas in new buildings have not been entirely abandoned in the state because they are specifically authorized by state law on a limited basis. In 2022, Massachusetts passed a law requiring the state Department of Energy Resources to “establish a demonstration project in which not more than ten cities and towns may adopt and amend general or zoning ordinances or by-laws that require new building construction or major renovation projects to be fossil fuel-free.”¹¹

What is the relevant utility regulatory body of public utilities in the state? Who and what does it regulate? Chapter 164 of the Massachusetts General Laws covers the manufacture and sale of gas and electricity. The Massachusetts Department of Public Utilities (DPU) has the general authority to regulate “all gas and electric companies” and the “authority to regulate and control distribution of gas.” Mass. Gen. Laws ch. 164, §§ 76, 105A. 

What authority, if any, do municipalities have over utilities? The Massachusetts Supreme Judicial Court has held that “local laws are superseded by statutes that deal comprehensively with a Statewide problem, and . . . utility regulation is one type of comprehensive legislation that preempts local ordinances.” Boston Edison Co. v. City of Boston, 459 N.E.2d 1231, 1234 (Mass. 1984). However, there are a number of sections of Chapter 164 that expressly provide for certain municipal authority. For example, section 62 authorizes municipalities operating a power plant to pass local laws imposing penalties “to protect the plant, control its use and prevent accidents from gas or electricity supplied by it, and to govern consumers in their use thereof.” Mass. Gen. Laws ch. 164, § 62.

Municipalities in Massachusetts are authorized to own and operate electric utilities, called municipal light plants, to provide electricity and gas to their residents. See, e.g., Mass. Gen. Laws ch. 164, § 47A. The DPU has limited oversight of these plants. There are over forty municipal light plants in the state.¹²

Can cities enter into franchise agreements with utilities? Under Mass. Gen. Laws ch. 164, § 72, utilities must petition the state Department of Public Utilities for authority to provide service within municipalities, which the Department may grant.¹³ However, utilities must still obtain authorization from local authorities before occupying municipal rights-of-way. Mass. Gen. Laws ch. 164, § 72; Sudbury v. Dep’t of Pub. Util., 179 N.E.2d 263 (Mass. 1962).

How can cities intervene in Department of Public Utilities proceedings? Cities can intervene in DPU proceedings to represent the interests of their residents. Mass. Gen. Laws ch. 30A, § 10; see Town of Sudbury v. Dep’t of Pub. Utilities, 218 N.E.2d 415, 419–20 (Mass. 1966).

Does the state have an obligation to serve statute? Yes, Massachusetts state law contains a “duty to serve” provision requiring utilities to provide service to customers who request it: “On written petition of any person, having a residence or place of business in a town where a corporation is engaged in the manufacture, transmission or sale of gas or the distribution of electricity, aggrieved by its refusal or neglect to supply the petitioner with gas or electricity, the department may . . . issue an order directing and requiring it to supply the petitioner with gas or electricity.” Mass. Gen. Laws ch. 164, § 92.

However, whether this obligation still applies is currently in controversy because of a recently passed climate law, Bill S.2967. Section 77 of that law states that when reviewing a petition for gas service, the DPU shall consider: (i) whether the grant of the petition is in the public interest, including the public interest in reducing greenhouse gas emissions and complying with the limits and sublimits established pursuant to chapter 21N; and (ii) whether, in the totality of the circumstances, the petitioner can secure adequate substitutes for gas-fired services . . . [t]he department may, in order to advance the public interest in reducing greenhouse gas emissions . . . order actions that may vary the uniformity of the availability of natural gas service.

The DPU is currently considering whether this amendment alters the obligation to provide customers with gas.

Has the state passed enabling legislation for community choice aggregation (CCA)? Yes, Massachusetts was the first state in the nation to pass CCA legislation in 1997.¹⁴ Massachusetts’ CCA enabling legislation authorizes “any municipality or any group of municipalities acting together within the commonwealth . . . to aggregate the electrical load of interested electricity consumers within its boundaries.” Mass. Gen. Laws ch. 164, § 134. The state has 176 communities with local CCA authorization.¹⁵

David J. Barron et al., Dispelling the Myth of Home Rule: Local Power in Greater Boston (2018), https://perma.cc/MS32-46BA.

Mass. Dep’t of Revenue, What is Home Rule? https://www.mass.gov/doc/home-rule/download. 

As noted above, section 7 of the Home Rule Amendment expressly withholds certain significant powers from local governments. Therefore, although courts have described Massachusetts’ local authority as “the strongest type of home rule,” Bloom, 293 N.E.2d at 273 n.4, commentators have noted that section 7 narrows home rule authority in Massachusetts compared to home rule in other states.¹⁶