AG disapproves Brookline’s “On-site Fossil Fuel Infrastructure” bylaw amendments

On February 25, 2022, the Attorney General disapproved two by-law amendments aimed at regulating on-site fossil fuel infrastructure as inconsistent with the preemptive effect of the state building code.  In that letter, Assistant Attorney General Margaret Hurley wrote:

Our review of Articles 25 and 26 from the 2021 Brookline Annual Town Meeting presents
the issue whether a town zoning by-law may regulate buildings based upon whether the building
materials include “On-Site Fossil Fuel Infrastructure” (as defined in the by-law). The statutory
language in the Zoning Act (G.L. c. 40A, § 3, and the broad preemptive scope of both the State
Building Code (“Building Code”) (780 CMR 100.00) and Chapter 164, all dictate the conclusion that
a town zoning by-law cannot regulate building materials or methods of construction. Because the
Brookline proposed by-law amendments conflict with the plain language of the Zoning Act, are
preempted by the Building Code and G.L. c. 164, and present additional state law conflicts as detailed
herein, we must disapprove Articles 25 and 26.

Click here for the full text of the AG’s decision letter.

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