Massachusetts Municipalities Continue Building Code Revisions Pending State Next Steps | Holland & Knight LLP


Much of the recent news on climate-influenced building codes came from California, where the The California Energy Commission announced Passing revisions to its building energy efficiency standards, also known as the California Energy Code, that may impact new construction beginning in 2023 if passed by the California Building Standards Commission. Despite the lack of headlines, Massachusetts is revising its building code to accommodate Commonwealth climate goals and implement climate adaptation strategies.

Massachusetts Governor Charlie Baker signed Chapter 8 of the 2021 Acts, Law creating a next-generation roadmap for Massachusetts climate policy (the Climate Act), which entered into force on March 26, 2021, consolidating the Commonwealth’s status as a leader in taking action to combat climate change. Among the provisions (Section 101) was the requirement that the Massachusetts Department of Energy Resources (DOER) adopt, in consultation with the Board of Building Regulations and Standards (BBRS), a specialized municipal voluntary extensible energy code that includes a definition a zero-building network within 18 months of the adoption of the climate law. Massachusetts already has a “stretch code” first adopted in 2009, when it became the first state to adopt an above schedule to the “basic” building energy code. The current extensible code, which emphasizes energy performance, as opposed to prescriptive requirements, was designed to result in a cost-effective construction that is more energy efficient than one built to the “basic” energy code. As of June 15, 2021, 296 communities in Massachusetts have adopted the BBRS extensible code.

Climate law requires DOER to hold at least five stakeholder meetings as part of the development process. This expanded process and timeline of stakeholders was the result of advocacy by NAIOP Massachusetts and other groups. To date, however, in the five months since the climate law was passed, neither DOER nor BBRS have published any plans to meet the statutory deadline.

Municipalities take their own measures

The lack of progress on the state plan contrasts with the actions of municipalities, which are trying to establish their own building code regulations using the Massachusetts legislative process. These include the City of Arlington, which is requesting permission to H.3750 use local zoning to restrict new construction or major renovation projects that are not considered “fossil fuel-free buildings”, defined as “an entire building or condominium unit that supports its operation without the use coal, petroleum, natural gas, hydrocarbon fuel, including synthetic equivalents, or other fossil fuels. Similarly, the City of Lexington is requesting authorization to H.3893 restrict new fossil fuel infrastructure in certain buildings. Some members of the Massachusetts legislature advocate the H.2167 for each municipality to adopt ordinances on all-electric buildings and houses.

The City of Watertown, on the other hand, has adopted “environmental performance” design standards urging the implementation of sustainable design and construction practices that incorporate technological innovation, green building practices and green site design. for new constructions along the main corridors (article 155-5.17 of the Code zoning by-law). Additionally, when reviewing the site plan (section 155-9.03), proposed developments will be assessed for their use of energy efficient technologies and renewable energy resources. These provisions do not prohibit the use of fossil fuels, but encourage the use of renewable energy resources.

Holland & Knight’s real estate and environmental lawyers will be monitoring these developments closely to see if municipalities succeed in their legislative endeavors or if DOER and BBRS adoption of a specialized energy code materializes.

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