August 30, 2021

Massachusetts Municipalities Pursue Building Code Revisions While Awaiting State's Next Steps

Massachusetts Climate Change Adaptation Initiatives: What Real Estate Professionals Should Know, Part 5
Holland & Knight Alert
Dianne R. Phillips | Frank Stearns | Maria de la Motte


  • Chapter 8 of the Acts of 2021, An Act Creating a Next-Generation Roadmap for Massachusetts Climate Policy, requires the development of a voluntary municipal specialized stretch energy code within 18 months of the Climate Act's passage; however, no plans have been announced by the Massachusetts Department of Energy Resources or the Board of Building Regulations and Standards.
  • Meanwhile, Massachusetts municipalities are seeking to use the Massachusetts legislative process to develop their own climate-influenced building code regulations in the absence of state action.

Much of the recent news about climate-influenced building codes has come out of California, where the California Energy Commission announced adoption of revisions to its Building Energy Efficiency Standards, also known as the California Energy Code, potentially impacting new construction beginning in 2023 if adopted by the California Building Standards Commission. Despite the lack of headlines, Massachusetts is on its own journey to revise its building code to accommodate the Commonwealth's climate goals and implement climate adaptation strategies.

Massachusetts Gov. Charlie Baker signed Chapter 8 of the Acts of 2021, An Act Creating a Next-Generation Roadmap for Massachusetts Climate Policy (the Climate Act), into law on March 26, 2021, cementing the Commonwealth's status as a leader in taking action to address 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 voluntary municipal specialized stretch energy code that includes a definition of a net-zero building within 18 months of the Climate Act's passage. Massachusetts already has a "stretch code" first adopted in 2009, when it became the first state to adopt an above-code appendix to the "base" building energy code. The current stretch code, which emphasizes energy performance, as opposed to prescriptive requirements, was designed to result in cost-effective construction that is more energy efficient than that built to the "base" energy code. As of June 15, 2021, 296 Massachusetts communities have adopted the BBRS stretch code.

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

Municipalities Take Their Own Actions

The lack of progress on the state plan is contrasted with the actions of municipalities, which are attempting to make their own building code regulations through the use of the Massachusetts legislative process. These include the Town of Arlington, which seeks authority in H.3750 to use local zoning to restrict new construction or major renovation projects that do not qualify as "fossil fuel-free buildings," defined as "an entire building or condominium unit that supports its operation without the use of coal, oil, natural gas, fuel hydrocarbons, including synthetic equivalents, or other fossil fuels." Similarly, the Town of Lexington seeks authority in H.3893 to restrict new fossil fuel infrastructure in certain construction. There are some in the Massachusetts legislature who are advocating in H.2167 for each municipality to adopt all-electric buildings and homes ordinances.

The Town of Watertown, in contrast, adopted "Environmental Performance" design standards urging the implementation of sustainable design and construction practices that incorporate technological innovation, green building practices and ecological site design for new construction along major corridors (Section 155-5.17 of the Zoning Code). In addition, during Site Plan Review (Section 155-9.03) proposed developments will be evaluated for their use of energy-efficient technology and renewable energy resources. These provisions do not ban the use of fossil fuels, but encourage the use of renewable energy resources.

Holland & Knight's real estate and environmental attorneys will be following these developments closely to see whether municipalities will be successful with their legislative attempts or whether DOER and BBRS adoption of a specialized stretch energy code will come to fruition.

Previous Alerts in This Series

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.

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