Municipal Regulatory Authority

Massachusetts grants regulatory authority to municipalities via the Home Rule Amendment (“Amendment”), Mass. Const. amend. art. II, §§ 1-9 (as amended by Mass. Const. amend. article LXXXIX).

The Amendment provides cities and towns with broad regulatory power:

It is the intention of this article to reaffirm the customary and traditional liberties of the people with respect to the conduct of their local government, and to grant and confirm to the people of every city and town the right of self-government in local matters, subject to the provisions of this article and to such standards and requirements as the general court may establish by law in accordance with the provisions of this article.1

(Please note: the term “general court” in the Massachusetts Constitution and state statutes refers to the Massachusetts state legislature.)

The Amendment empowers cities and towns to enact local ordinances that do not conflict with the general laws of Massachusetts.2 The Amendment does not, however, permit localities to criminalize behavior legalized by the legislature.3

The substance of the Amendment is rooted in Mass. Const. amend. art. II, § 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 in conformity with powers reserved to the general court by [Const. amend. art. II, § 8], 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 [Const. amend. art. II, § 3].

Massachusetts General Laws ch. 43B, § 13, which defines the parameters of a municipality’s powers, is virtually identical in substance to Mass. Const. amend. art. II, § 6.

Under the Amendment, municipal actions are presumed valid, and municipalities may undertake any action that is not inconsistent with state law.4 The Massachusetts Supreme Judicial Court has set forth the following guidelines for determining whether a municipal ordinance is inconsistent with state law:

  • If there is an express legislative intent to forbid local activity on the same subject, state law preempts local law;
  • If the local regulation would frustrate the purpose of the statute so as to warrant an inference that the Legislature intended to preempt the subject, state law preempts local law. Courts may infer that the Legislature intended to preempt the field of regulation if legislation on the subject is so comprehensive that any local enactment would frustrate the statute’s purpose; or
  • State law preempts local law if there is a “sharp conflict” between the state legislation and the local law, which happens when the legislative intent to preclude local action is clear or the purpose of the statute cannot be achieved in the face of the local law.5

In Town of Amherst v. Attorney General, 502 N.E.2d 128, 130 (Mass. 1986), the Massachusetts Supreme Judicial Court interpreted several provisions of Mass. Const. amend. art. II in the context of a firearms discharge by-law, holding that when a town exercises a right to govern locally, it “exceeds its power only when it passes a by-law inconsistent with the Constitution or laws of the Commonwealth” per Mass. Const. amend. art. II, § 6.

In Town of Amherst, the court found that a town by-law prohibiting the discharge of specified firearms within town limits under various circumstances was not inconsistent with state statutes regarding hunting and the safe use of firearms and was therefore valid.6 The Massachusetts Attorney General had disapproved of the by-law on the basis that it constituted an undue restriction of firearm use in a rural town.7

The court disagreed, stating that the existence of state law addressing the same subject a local government seeks to regulate does not necessarily result in preemption of local authority. Rather, if the state’s “legislative purpose can be achieved in the face of a local [regulation]…on the same subject, the [local regulation] … is not inconsistent with the State legislation.”8 .)) The court determined that the local law did not frustrate the purpose of state laws regarding hunting and therefore did not conflict with state substantive or procedural laws.9

Massachusetts Constitutional amendment art. II, § 7 limits cities and towns from exercising the authority granted in Mass. Const. amend. art. II, §§ 1 and 6 in specified areas unless such authority is granted by the general court as provided for in Mass. Const. amend. art. II, § 8. For example, municipalities are prohibited from providing “for the punishment of a felony or to impose imprisonment as a punishment for any violation of law.”10 In addition, Mass. Const. amend. art. II, § 7(2) prohibits cities and towns from levying, assessing or collecting taxes.

A city or town may petition the state to enact special legislation pertaining only to that city or town pursuant to Mass. Const. amend. art. II, § 8. Boston’s assault weapon ban is an example of regulation that was enacted through this process.11

Finally, under the Amendment, municipalities generally are no longer required to seek authority from the state legislature to impose controls relative to zoning.12 Chapter 40A expressly recognizes local autonomy in dealing with land use and zoning issues.13

Towns in Massachusetts may, under ch. 40, § 21, “make such ordinances and by-laws, not repugnant to law, as they may judge most conducive to their welfare, which shall be binding upon all inhabitants thereof and all persons within their limits.” Specifically, towns may enact ordinances and by-laws “[f]or directing and managing their prudential affairs, preserving peace and good order, and maintaining their internal police.”14

County Regulatory Authority

Although the Massachusetts Constitution does not grant any explicit power to counties, those counties adopting a charter under ch. 34A, § 15 have the power to “[a]dopt, amend, enforce, and repeal ordinances and resolutions notwithstanding the effect of any referendum conducted prior to the county’s adoption of its charter pursuant to” Chapter 34A.15 With respect to regulations for the general health, safety and welfare, however, “[c]ities and towns are and shall remain the broad repository of local police power in terms of the right and power to legislate” in these areas.16

Notes
  1. Mass. Const. amend. art. II, § 1. ⤴︎
  2. Tri-Nel Mgmt., Inc. v. Board of Health of Barnstable, 741 N.E.2d 37, 43 (Mass. 2001). ⤴︎
  3. American Motorcyclist Ass’n v. Park Comm’n of Brockton, 592 N.E.2d 1314 (Mass. 1992) (invalidating local regulation banning use of motorcycles because regulation inconsistent with statute giving persons the right to operate motor vehicle). ⤴︎
  4. Connors v. City of Boston, 714 N.E.2d 335 (Mass. 1999). ⤴︎
  5. Id. at 337-38. ⤴︎
  6. Town of Amherst, 502 N.E.2d at 131-32. ⤴︎
  7. Id. at 129. ⤴︎
  8. Id. at 130 (quoting Bloom v. Worcester, 363 Mass. 136, 156 (Mass. 1973 ⤴︎
  9. Id. at 131. ⤴︎
  10. Mass. Const. amend. art. II, § 7(6). ⤴︎
  11. 1989 Mass. Acts 596, §§ 1-7. ⤴︎
  12. Baldiga v. Board of Appeals of Uxbridge, 482 N.E.2d 809, 812 n.5 (Mass. 1985). ⤴︎
  13. Id. at 812, Zoning Bd. of Appeals of Wellesley v. Ardemore Apts. L.P., 767 N.E.2d 584, 593 n.22 (Mass. 2002). ⤴︎
  14. Ch. 40, § 21(1). See Brown v. Town of Carlisle, 142 N.E.2d. 891 (Mass. 1957) (holding that ch. 40, § 21(1) permits a local jurisdiction to prohibit the discharge of a firearm on any private property except with the permission of the land owner or legal occupant of the land). ⤴︎
  15. Ch. 34A, § 16(A)(ii). ⤴︎
  16. Ch. 34A, § 16(B). ⤴︎