June 2022

Board of Building Regulations and Standards rejects fire sprinkler mandate

On May 26, the Massachusetts Board of Building Regulations and Standards (BBRS) voted overwhelmingly to reject an amendment to the State Building Code (780 CMR) that would have required the installation of fire sprinkler systems in all newly constructed one and two-family homes. Ten members of the board voted against, two in favor and one abstention. The two votes in favor, not surprisingly, were from the representatives of the fire services.

While the BBRS has in the past rejected efforts to mandate sprinklers in one and two-family homes, the vote was hardly a foregone conclusion, as the composition of the board has changed with several new members recently appointed by Governor Baker. Board member and HBRAMA representative Michael McDowell was instrumental, as always, in leading the opposition to this unnecessary and costly mandate. His efforts were also supported by the municipal building officials who serve on the BBRS.

HBRAMA opposes real estate transfer taxes

The HBRAMA has joined a coalition of other organizations to oppose bills at the State House that would allow cities and towns to impose a surtax on real estate transfers to fund affordable housing initiatives. More than a dozen communities have filed home rule petitions seeking permission from the Legislature to adopt such transfer taxes. Garnering the most attention is H. 4637, An Act relative to real estate transfer fees and senior property tax relief, filed by the City of Boston and championed by Mayor Michelle Wu.

Transfer taxes violate the principles of tax fairness, discriminating against the small percentage of people in the state who buy or sell a home or commercial property annually. They also decrease housing supply, magnifying an already severe inventory shortage and increasing prices for homes below the tax threshold. Transfer taxes also pose a logistical nightmare for buyers, sellers, closing attorneys, lenders and the Registry of Deeds.

The HBRAMA, together with the Massachusetts Association of Realtors, Greater Boston Real Estate Board, NAIOP Massachusetts, the Massachusetts Bankers Association, the Massachusetts Mortgage Bankers Association, the Greater Boston Chamber of Commerce, and the Real Estate Bar Association, urges communities across the Commonwealth to leverage the tools already available, including zoning changes, to encourage the production of housing and not implement an additional tax that will make housing more expensive and chill economic growth.

A copy of the coalition’s letter can be found here.

HBRAMA testifies in support of Governor’s economic development bill

The Legislature’s Joint Committee on Economic Development and Emerging Technologies held a public hearing on May 9 at the State House on H. 4720, An Act investing in future opportunities for resiliency, workforce, and revitalized downtowns (FORWARD, the Baker Administration’s 2022 economic development bill. Among the provisions of that omnibus legislation are amendments to increase the likelihood of success of the Starter Home Program championed by the HBRAMA. The association’s counsel and lobbyist, Benjamin Fierro of the firm of Lynch & Fierro LLP, testified in person on behalf of the HBRAMA in strong support of those changes to Chapter 40R, the Smart Growth Zoning and Housing Production Act.

In 2016, Chapter 40R was amended to extend the law’s financial incentives to cities and towns if they adopt an overlay zoning district that permits the development of smaller homes (not exceeding 1850 sq. ft. of heated living area) on smaller lots (at a density of no less than 4 units to an acre). The problem with the current law is that those homes must be located in a so-called “smart growth” location.

If approved by the Legislature, H. 4720 would strike starter homes from Chapter 40R and create an entirely new statute, Chapter 40Y Starter Home Zoning Districts. By doing so, it will resolve many of the problems of trying to fit “a square peg into a round hole.” No longer would a starter home zoning overlay district have to be located in a “smart growth location” approved by the state. Rather, an eligible starter home zoning overlay district would be any location that a community determines is appropriate.

Further, the current requirement that 20% of the units in a starter home development be affordable to individuals and families whose incomes do not exceed 80% of Area Median Income as determined by the U.S. Dept. of HUD, would be reduced to 10% of the units at 110% of AMI, thereby making the economics of such a project more workable.

Importantly, by creating an entirely new statute, the existing regulations governing stater homes can be rewritten to make them less burdensome for municipalities and less costly for developers.

The HBRAMA is hopeful the Legislature will include Chapter 40Y when it acts on H. 4720.

Conference Committee meets to negotiate climate bill and gas bans



The Joint House-Senate Conference Committee appointed to iron out the differences between competing climate bills recently began work in earnest to reach a compromise before the end of formal legislative sessions on July 31. Of particular concern to the HBRAMA is the provision in the Senate bill, S. 2842, that would require the Department of Energy Resources to establish a 10-municipality demonstration project allowing municipalities to restrict or prohibit new building construction or major renovation projects that utilize fossil fuels (coal, oil, propane and natural gas).

The gas ban is a direct response to Attorney General Healey’s past rulings that any local bylaw or zoning bylaw that seeks to ban the installation of fossil fuel infrastructure in new building projects is prohibited by existing state law governing building permits and the regulation of gas utilities.

The HBRAMA is strongly opposed to this provision of S. 2842 as it will dramatically increase costs for both builders and homebuyers in the 10 participating communities. Further, it will set a precedent for other communities to adopt similar bans on the use of fossil fuels to heat homes that will stifle housing production and worsen the state’s housing crisis.

The members of the Conference Committee are: Senators Michael Barrett (D-Lexington), Cynthia Creem (D-Newton), Bruce Tarr (R-Gloucester) and Representatives Jeff Roy (D-Franklin), Tackey Chan (D-Quincy) and Brad Jones (R-North Reading).

MEPA Rolling Out New Guidance and Regulations

Prompted by the passage of last year’s Act Creating A Next-Generation Roadmap For Massachusetts Climate Policy (St. 2021, c. 8, ss. 57-60), the Massachusetts Environmental Policy Act (MEPA) Office has embarked on an effort to align the MEPA regulations with state policy and planning efforts involving environmental justice, climate adaptation and resiliency, and greenhouse gas mitigation.

Through this effort, the MEPA Office has completed its first phase of regulatory review by promulgating new regulations (effective 12.24.21) and two final protocols (effective 1.1.22), including: (1) “MEPA Public Involvement Protocol for Environmental Justice Populations” (requiring evaluation of projects affecting defined environmental justice (EJ) populations); and, (2) “MEPA Interim Protocol for Analysis of Project Impacts on Environmental Justice Populations” (requires projects triggering certain MEPA ENF review thresholds to provide “enhanced public participation” by surrounding EJ populations, and requiring projects triggering certain mandatory EIR thresholds conduct an “enhanced analysis of impacts and mitigation”).  

The second phase of regulatory reform involves an evaluation and update of MEPA review thresholds (which trigger MEPA review) based upon climate change and other factors, given that these review thresholds have not been updated since 1998. The MEPA Office intends to complete this second phase of review and promulgate new regulations by the end of this year.

In July 2021, MEPA formed a working group of real estate and environmental interests, including HBRAMA member Attorney John Smolak and association lobbyist Ben Fierro, to assist the MEPA Office in shaping these directives. That group has met at least monthly since that time and the HBRAMA is grateful to the countless hours Attorney Smolak has donated on its behalf. More detailed information on MEPA can be found here.