Air Pollution

Air quality is regulated on the federal level by the EPA under the Clean Air Act and at the state level by DEP's Division of Air Quality under the state Clean Air Act.  Federal and state regulations impose permit requirements and emission limits for certain stationary and moving air pollution sources and certain types of emissions G.L. c. 111, §§ 2B, 31C, 142A-F.

These laws and rules apply in most of their particulars to cities and towns, relative to stationary sources, vehicles and facilities.

Most enforcement is done by the state, but local officials, such as police departments, fire departments, boards of health, and building inspectors have the authority to enforce air pollution control laws and regulations.

Municipalities have their own authority, under G.L. c. 111, 31C, to adopt air pollution control programs, including the power to regulate emission of smoke, particulate matter, soot, cinders, ashes, toxic and radioactive substances, fumes, vapors, gases, industrial odors, and dusts which constitute a nuisance or danger to public health or which impair public comfort and convenience. The local requirements are administered by the board of health or other authority established for this purpose by vote. Local health regulations must be presented at a public hearing and provided to DEP.

For example, the City of Boston has comprehensive rules for all manner of pollution sources. Many such boards have their own air pollution rules in general, or regulating specific types of facilities, to protect the ambient (outdoor) air.

Some boards of health have rules to regulate smoking in public settings and public buildings. On this score, the board or health or building inspector receives complaints under the state Clean Indoor Air Act, G.L. c. 270, § 22.

Boards of selectmen may authorize the town's fire department to issue not more than one permit a year for a ceremonial bonfire to mark the observance of a significant event. Bonfire permits can be issued only to a municipal department or to a civic, fraternal or veterans' organization.

Many communities outside of the metropolitan Boston area allow, but regulate by permits, open burning during an annual burning season for property maintenance.

Billboards and Signs

Billboards are regulated on the state level by the Outdoor Advertising Board within the Massachusetts Highway Department and may also be regulated by a local zoning or other bylaw. Billboard owners must be issued a state permit annually for each billboard.

State regulations prohibit approval of a billboard determined to be in violation of either state or local laws. Signs other than billboards (e.g., in commercial districts in a community) may be regulated through local bylaw.

Sign requirements of all types are typically found in a section of the local zoning bylaw or ordinance.

If the town is concerned about maintaining an historic character to the commercial area and has an historic district commission, the commission may include sign standards in its regulations for the district.

Brownfields

The term “brownfields” refers to lands located in urban or suburban settings which, for reason of contamination, remain abandoned or ignored due to environmental liabilities.

The state Brownfields Act, G.L. c. 21E, in 1998 created incentives to undertake remediation and redevelopment, a boon to municipalities as partners, facilitators or just recipients of resumed tax payments and productive employment.

Incentives include tax credits, loan guarantees, grant moneys for economically distressed areas, and limited liability for redevelopment authorities and community development corporations.

Coast and Ocean

Cities and towns in our coastal area should be aware of the federal and state regulatory, planning, environmental review, and funding programs. Municipal activities and projects need permissions like any others. One proviso is the obligation to secure a consistency determination from the EOEEA CZM program for projects and activities needing or seeking federal approvals or financial assistance.

CZM works with coastal communities to develop municipal harbor plans which can free them from some state constraints; marine industrial uses are encouraged in state designated port areas; municipalities get preferential treatment in connection with ocean wind facilities under the Ocean Management Plan, which more broadly deals with state oversight, coordination, planning and policy for the state’s ocean resources.

Conservation Restrictions

Cities and towns can be party to conservation restrictions, known as CRs. These are voluntary agreements between a government body or qualified charitable organization, by with the owner covenants to keep land primarily in its undeveloped condition, in a recorded instrument following a form approved by EOEEA. It may run in perpetuity or a period of years. To be effective, a CR given to a city or town, or to a charity within the community, must be approved by the selectmen or city council.

The Conservation Restriction Act, G.L. c. 184, §§ 31-33, governs CRs, Agricultural Preservation Restrictions, and Historic Preservation Restrictions. By virtue of the Act, the municipal assessors are required to take account of the restrictions imposed when assessing a property.

Drinking Water

Although many towns still rely, in part, on private wells, most towns in Massachusetts are served by one or more public water supply systems, from municipal wells, reservoirs, or combination.

A public water supply is defined as a system that has at least 15 service connections, or regularly serves an average of 25 or more people at least 60 days a year. This is the threshold for regulation by the federal Safe Drinking Water Act.

Except for communities receiving water service from the Massachusetts Water Resources Authority (MWRA), any town may vote to establish and operate its own water supply and distribution system.  G.L. c. 40 and c. 39A. Towns may purchase water from private companies or from other communities.

Towns with a public water supply may create a board of water commissioners of three members, or the selectmen may be authorized to act as the board. In recent years, several towns with separate water commissioners and sewer commissioners have combined these boards to create a water and sewer commission. G.L. c. 40N. Towns also use the legislative "special act" process to create municipal water departments and combined water and sewer commissions.

Towns with their own water systems may construct and maintain dams, wells, reservoirs, pumping and filtration plants, buildings, stand pipes, tanks, fixtures and other structures, and purification and treatment plants. The cost of purchasing, developing, and enlarging public water supplies can be financed through the issuance of bonds.

A community bills the users of water, based on consumption, and the costs of maintaining and operating the system. In recent years, communities have adopted "enterprise funds," (G.L. c. 44, § 53) to guarantee that the revenue received for services is sufficient to meet the operation costs and capital expenditures of the water and/or water and sewer department.

DEP has broad authority for monitoring and enforcing water quality standards for public water supplies and for approving sources of water, water systems, and treatment facilities. The approval regulations for new sources include requirements for controlling land use near the wells in order to protect the water quality.

DEP regularly tests public water supplies for contaminants (the levels are set by federal law.) If any water supply fails to meet the standards for drinking water safety and quality, DEP can require treatment or direct that the public be notified. In addition, water commissioners or selectmen acting as such, may impose additional controls on a water system, subject to bylaws or any rules and regulations approved by the town.  G.L. c. 41, § 69B.

State law requires that each public water supply (municipality or district) have a state Water Management Act permit from DEP authorizing the amount of water available to the municipality. DEP has grant programs for land acquisition, addressing contamination problems, and constructing filtration plants.

Private wells are under the jurisdiction of local boards of health.

Owners of buildings that need a source of water for which a municipal water supply is not available must receive a permit from the board of health certifying that there is an adequate supply of potable water at the site.

Although DEP provides boards of health with assistance at their request, the agency has no direct authority over the regulation of private wells. Some local boards of health have promulgated regulations, and information is available from the Massachusetts Association of Health Boards.

In addition to monitoring drinking water, DEP has extensive authority to protect ground water from pollution. G.L. c. 21, §§ 26-53. Under its ground water discharge permit program, DEP approval is needed to discharge most pollutants, including sewage, commercial, industrial, and agricultural waste, or runoff.

DEP has authority under the Water Management Act (G.L. c. 21G) to manage ground and surface water together as a statewide resource.

The Act empowers DEP to deal with water supply shortages and emergencies. Each community must have a water resources management plan that incorporates conservation standards based on guidelines of the Massachusetts Water Resources Commission.

Farmland and Agriculture

Agriculture is encouraged by state law authorizing municipalities to establish incentive areas and relaxing nuisance laws somewhat for farming. G.L. c. 111, §§ 125A, 143. There is some protection for farmland from eminent domain.  G.L. c. 79, § 5B. The state Zoning Act exempts agricultural activities on lots of a certain size, and exempts farm stands if they meet certain requisites. G.L. c. 40A, § 3.

State tax law can reduce real estate taxes for properties meeting certain minimum sizes and gross receipts.  G.L. c. 61A, backed up by tax rollbacks and conveyance taxes for properties taken out of the program. The law gives municipalities a right of first refusal, which they can assign to others to utilize, to purchase farmland that otherwise would be sold or converted to a non-agricultural use.

There is a qualified exemption in the state Wetlands Protection Act for normal maintenance or improvement of lands already in agricultural use.  G.L. c. 40.   

Floodplains

Floodplain protection is a mainstream part of local zoning under the state Zoning Act, G.L. c. 40A, ever since the so-called Turnpike Realty case. In roughly 80 percent of municipalities, this involves a floodplain zone, a type of “overlay district,” where some uses like buildings and land changes like filling and excavating are banned, and others need special permits from the zoning board of appeals if they meet specified criteria.

This method of land use control to protect the public health and safety became popular due to related restrictions imposed by the Federal Emergency Management Agency (FEMA) flood insurance program whereby FEMA designates flood prone areas and flood hazard zones depicted on periodically revised Flood Insurance Rate Maps (FIRM).

Forests and Trees

The state Forest Cutting Practices Act, G.L. c. 132, §§ 40-46, promotes responsible harvesting of trees. Limited exemptions apply for public utility and highway maintenance and some other projects requiring city or town permits.

The selectmen, tree wardens, road superintendents, and public works departments pay attention to the Public Shade Tree Act. G.L. c. 87. This protects publicly owned trees along city, town and county ways, namely within public ways or on the boundaries thereof. No such tree may be cut, trimmed or removed, even by the owner, without permission of the municipal tree warden after posting and public hearing. If there is written objection, the work needs approval of the selectmen or mayor.

There is an important exemption for the selectmen, mayor, road commissioners, or highway surveyor to order trees to be trimmed or removed if they deem them to “obstruct, endanger, hinder or incommode” persons traveling on a way. Officers in charge of widening roads may order removal of trees for that purpose.

The state Scenic Roads Act regulates cutting or removal of trees, or tearing down or destruction of stone walls, along scenic roads so designated by town meeting or city council, by mandating a planning board public hearing.

Massachusetts affords real estate tax relief for land in forest tree use. G.L. c. 61.

Hazardous Waste and Toxic Materials

The state so-called Superfund Statute, G.L. c. 21E, imposes responsibility and liability for releases of hazardous materials as well as oil and other petroleum products, and for suspected or confirmed disposal sites. DEP’s comprehensive regulations, known as the Massachusetts Contingency Plan (MCP) governs cities and towns like anyone else.  

The MCP sets forth what municipal officials need to know about reporting of releases and sites, response actions and reports, cleanup standards, liabilities and fees, legal defenses, and presenting and pursuing claims that cities or towns may have for cost recovery and property damages for which others are liable.

Municipalities generally are subject to 21E like other present and former owners and operators of sites as well as generators, storers, transporters and disposers of oil and hazardous materials (OHM). But see Brownfields above.

Comprehensive federal and state laws and regulations govern the location and operation of hazardous waste facilities. In addition, local boards of health have authority under State law (G.L.  c. Ill, § 150B), to assign sites for faculties which store, treat, or dispose of hazardous waste.

Municipalities are responsible like other persons and entities for proper management of hazardous wastes and chemicals, G.L. c. 21C, and toxic use reduction, G.L. c. 21I.

Hazardous materials are regulated through the state so-called Right to Know law.  G.L. c. 111F.  Concerned that residents understand the health and safety risks involved in the town's industries, this requires cities and towns to respond to citizens' requests for information on hazardous substances used by local employers in the course of their routine work. It also helps that a town's emergency response personnel are aware of potential hazards. Not only does a town have responsibility for enforcing this law, but also is subject to its terms as an employer. The selectmen designate the municipal coordinator, who is usually the fire chief, fire commissioner, public health commissioner, or public health officer. In small towns, the selectmen may designate one of the board's members to be municipal coordinator.

Historic Sites and Structures

Municipalities can create historic districts for managing sites and structures therein. They may do so by special act or, more commonly, by an enabling act under the Historic District Act, G.L. c. 40C. The resulting Historic District Commissions, of which there are more than 200, are city or town boards with power to regulate and restrict various changes within the district.

In addition to this “district” approach, there are local historical commissions, providing leadership and education to preserve sites and buildings under G.L. c. 40, § 8D.

Several municipalities have enacted zoning or general “demolition delay” bylaws requiring permits and imposing delays during which efforts can be undertaken to avoid losses of particular buildings.

Nuisances

Boards of health and selectmen have the comparable authority to take action in the removal of nuisances. A health nuisance is defined by law as a source of filth or a cause of sickness. State law gives the board of health the power, to approve a business that may result in a nuisance or harm to the inhabitants, cause injury to their land, or cause offensive or dangerous odors. This permission is called a site assignment. G.L. c.  111, § 143.

Boards of health using their nuisance abatement power are authorized to examine all nuisances which may be injurious to the public health and to destroy, remove, or prevent them. G.L. c. 111, § 122. A separate section of law gives selectmen the same nuisance abatement powers as boards of health. G.L. c. 139, § 3.

Selectmen may declare a burned, dilapidated, or dangerous building, structure, or vacant lot to be a nuisance. After holding a public hearing and giving written notice to the owner of the property or his authorized agent, the selectmen may order the nuisance altered, disposed of, or regulated. If the owner fails to comply, the town can sue for the cost of removing the building or for the cost of another solution. G.L. c. 139, §§ 1, 3A.

Some towns have nuisance bylaws which allow them to clean up a nuisance, bill the property owner for costs, and place a lien on the property if the bill is not paid.

Land Use Plans

Municipalities prepare and publish many kinds of land use plans. By and large they are not mandatory in some absolute sense, but rather support good zoning ordinances and bylaws, subdivision regulations, public health rules, land acquisition efforts, building programs, and road and utility construction.

Some types of plans are necessary, though, to qualify for state grant programs…Green Communities Act eligibility…federal funding…

In general, the so-called Comprehensive Plan or Master Plan is important but optional. Good plans are based on professional consulting, public participation, wide publication, and periodic updates. The state has some limited financial and technical assistance available for community planning. There are incentives in the Cape Cod Commission Act, 1989 Mass. Acts c. 716, for the 15 Cape towns to prepare local comprehensive plans consistent with regional policy.

The Subdivision Control Act requires planning boards to prepare master plans, but it does not actually require that any laws or regulations be based on them.  G.L. c. 41, §§ 81K-81GG. The Zoning Act permits municipalities to enact a wide array of zoning measures, but it does not actually require that such zoning be based on a plan.

Open Space

A variety of state statutes and real estate tools deal directly or indirectly with preservation of enhancement of open space.

Municipalities, many federal and state agencies, and regional authorities may take by eminent domain, purchase or receive gifts of open space. They also may acquire less than fee interests, such as easements, covenants and other restrictions.

The Conservation Restriction Act encourages and facilitates recordable, enforceable promises not to develop property which is to be left substantially in its natural condition.  These can be bought and sold, donated, or bequeathed.  The same statute allows agricultural preservation restrictions (APRs) and historical preservation restrictions (HPRs).  G.L. c. 184, §§ 31-33.

Many individual statutes protect public properties.  These include parklands, playgrounds, city or town forests, cemeteries, and shore reservations. G.L. c. 45, §§ 3, 14, 19, 21, 23A.  Farmland, whether public or private, enjoys several protections.  Likewise, forests and trees (including the Public Shade Tree Act, G.L. c. 87, § 1; G.L. c. 40, § 40, § 15C).

The Scenic Mountains Act is applicable within Berkshire County only, allowing municipalities at local option to adopt the statute to regulate activities on land at higher elevations. G.L. c. 131, § 39A.

In addition to the statutes governing such public properties or their open space characteristics, be sure to consult the provisions in the Massachusetts Constitution protecting public lands from ill-considered disposition or change in use.  Article 97 of the Amendments of the Massachusetts Constitution.

The Community Preservation Act is G.L. c. 44B.  Any city or town may establish a special Community Preservation Act fund that may be appropriated and spent for certain open space, historic resources, and affordable housing purposes.  To establish a find, a community must accept the statute.  This requires a majority vote of town meeting or city council and voters at the next regular municipal of state election.

The primary source of revenue is a property tax surcharge of up to 3 percent that would be assessed on each parcel of taxable real estate within the community.  These amounts are not subject to the levy limitations of Propositions 2 ½.  The second source of revenue is matching distributions or the state’s Massachusetts Preservation Trust Fund, also created by the act.  For each fiscal year, the city or town must spend or reserve at least 10 percent of the annual revenues in the local funds for each of the statute’s community preservation purposes – open space, historic resources, and affordable housing.  Many cities and towns adopted the Community Preservation Act, imposing surcharges ranging from 1 percent to 3 percent.  Guidelines are available from the state Department of Revenue (DOR).

In addition to the Community Preservation Act, cities and towns may apply for a number of open space grants through the Division of Conservation Services (DCS) in the EOEEA.  Funds provided by these grants are intended for use in the acquisition, reacquisition, and renovation of open space DCS programs include the Massachusetts Parkland Acquisitions and Renovations for Communities Program (PARC), Massachusetts Land and Water Conservation Fund, and the Conservation Partnership Grant.

Pesticides

The agency known as the Pesticide Board within the Massachusetts Department of Food and Agriculture (DFA) promulgates and administers state requirements similar to those imposed by the federal Insecticide, Fungicide, and Rodentcide Act (FIFRA), 40 C.F.R. 152.  These require state registration of pesticides, broadly defined, registration and proper training of applicators, and pesticides programs of public utilities.  G.L. c. 132B; 333 C.M.R. §§ 2.00, 11.00.

The Pesticide Board has promulgated overall regulations and specific rules on pesticide use for right-of-way management.  These are critical to consult for maintenance of roads, railroads, and utility lines or pipes.

Substantial state preemption of local regulations of pesticide use is dealt within the case of Town of Wendell v. Attorney General, 394 Mass. 5189 (1985).

Legislation enacted in 2000 bans the use of certain pesticides inside grade schools and child care centers and requires parental notification before outside application of pesticides.  Treated areas must be posted for at least seventy-two hours after the applications.  The schools and the child care facilities also must implement integrated pest management plans (IPM).  2000 Mass. Acts c. 85.

Public Lands

Adopted by the voters in November 1972, Article 97 of Amendments to the Massachusetts Constitution requires special, high-level consideration of any proposed disposition of or change in use of parklands.  Specifically, Article 97 requires a two-thirds roll call vote of each house of the state legislature in order to dispose of or change the use of certain state, county or local public lands taken or acquired for natural resources proposes, broadly defined.  Amendment Article 97 created Article 49 of the constitution itself.

In effect, anyone seeking to alter the use of or grant, sell, or lease public land originally taken or acquired for natural resource purposes likely would need a bill drafted and passed by the legislature and signed by the governor.  Several court decisions deal with Article 97.  Article 97 essentially codifies the public trust doctrine in Massachusetts.

An Opinion of the Attorney General on June 6, 1973, answered questions on the meaning and implementation of Article 97, reinforcing its broad applicability.  45 Op. Att’y Gen. 139 (1973).

The bottom line is that many municipal transactions amount to dispositions of public natural resource lands (and easements and interests in real estate).  In addition, many municipal actions amount to changes in use about such protected properties.  Both need a piece of Article 97 legislation.  Several such bills are filed each year, mostly not controversial, enabling land swaps with state forests or state parks, limited commercial or private activities in municipal parks and forests, transactions with local businesses and local landowners to lease town properties, legalization of encroachments, or releases of conservation restrictions.

In 1998, the EOEEA promulgated its Article 97 Land Disposition Policy.  The purpose is to “ensure no net loss of Article 97 lands under the ownership and control of the Commonwealth and its political subdivisions.”  EOEEA Article 97 Land Disposition Policy (Feb. 19, 1998).  Thereby the EOEEA will not support an Article 97 land disposition unless the sponsoring agency determines that “exceptional circumstances exist” for the disposal and certain conditions must be met.  The policy provides an extensive internal review process for potential dispositions.

The consequences for municipalities are rather serious in that the policy specifies that non-compliance leaves the city or town ineligible for grants offered by the EOEEA or its agencies until the municipality has complied.

An earlier common law doctrine is still in effect, the prior use doctrine.  This requires a majority vote of the legislature on a bill filed to authorize any changes of use of public land to inconsistent uses.

In addition to these procedural requisites protecting public lands, specific types of resources are governed by individual statues.  Many public lands within municipalities are managed under these laws. These include:  G.L. c. 45, §§ 1-13 (city and town parks);

• G.L. c. 45, § 3 (parklands);
• G.L. c. 45, § 14 (playgrounds);
• G.L. c. 45, § 19 (public domain);
• G.L. c. 45, § 21 (city and town forests);
• G.L. c. 45, § 23A-23C (shore reservations):
• G.L. c. 92, §§ 33-59 (urban parks and recreation lands);
• G.L. c. 132 (state forests); and
• G.L. c. 132A, §§ 1-18 (state parks).

The near perfect protection for public land comes in the form of a “deed in trust.”  This is the name for an instrument, drafted and recorded so as to impress a charitable trust requiring that the property be used forever for a specified stated purpose.

In addition, there is a statutory basis for ten taxpayers to commence an action with leave of court (or the attorney general) to enforce the terms of conveyance or gift to a municipality, county, or state agency.  G.L. c. 214, § 3(10).  This public charitable trust statutory enforcement has been used effectively against many cities and towns.

Public Shade Trees

Towns are required to have a tree warden under G.L. c. 41, §§ 1, 106, unless the duties of the warden have been delegated by the town to a board of public works per G.L. c. 41, § 69C-F, or to a municipal office of lands and natural resources, per G.L. c. 41, § 69G.

The tree warden, or designated agency, has broad authority to plant, trim, and remove public shade trees and shrubs on town streets. G.L. c. 87, § 2.

All trees that border public ways are public shade trees. If there is any doubt about a boundary, the presumption is that the tree belongs to the town, unless someone can show otherwise. G.L. c. 87, § 1.

Under state law, towns may appropriate money for the tree warden to plant shade trees along public ways, or up to 20 feet away to improve, protect, shade or ornament the street. G.L. c. 87, § 7. Trees in public parks are usually under the control of the park commissioners, although the tree warden may be asked to assist in the care of some or all park trees.

Public shade trees many not be cut down or removed by anyone except the tree warden or his or her deputy, unless the warden gives written approval A public hearing is required before the removal of any public shade tree.

Public Health

At the local level, boards of health have the primary responsibility for protecting public health in Massachusetts.

Under state law, the selectmen act as the board of health, if the town has no other arrangement. G.L c.41, § 1. Selectmen also can be authorized by town meeting to appoint a board of health. G.L. c. 41, § 121. More often, towns decide to have a separate board of health consisting of three or more elected members.

Several groups of towns have elected to form regional health districts. G.L c. 111, § 26A. Towns may also specify in their home rule charters a different method of delegating health duties. G.L. c. 43B, § 20.

Members of boards of health are not required by law to have any medical or health training, although in practice many do. A board may appoint a physician and other staff, however, to advise and assist them. G.L. c. 111, § 27.

In those towns in which the selectmen serve as the board of health, the field has become so complex that professional assistance is practically a necessity. Selectmen are authorized, by law, to appoint a health inspector, and in towns of less than 3,000 people, that person maybe the school physician. G.L. c. 41, §§ 102, 102A, 102B.

Most towns employ a health inspector and a public health nurse, either full-time, part-time, or on a contract basis. Qualifications for a health inspector include licensure as a registered sanitarian (R.S.). Many towns also require that inspectors be certified health officers (C.H.O.).

Boards of health have a wide range of responsibilities and functions specified by state law. Among the board's specific legal duties is enforcement of the State Sanitary Code, which establishes standards for day camps, swimming pools, and food service establishments. G.L. c. 111, § 127A. The code permits a board of health or other health authority to adopt rules and regulations stricter than those contained in the code.

Boards of health are also the local enforcement agents for the State Environmental Code, Title 5 of which establishes minimum standards for sewage disposal. Local boards of health may adopt more stringent regulations as local conditions warrant.

Boards of health have extensive power to adopt and enforce any reasonable health regulation. G.L. c. 111, § 31.

Boards of health may issue orders declaring that an emergency exists and requiring that certain actions be taken. They may order the fluoridation of water supplies, adopt and enforce local regulations for the control of air pollution, and for animal stables.

State law permits boards of health, or selectmen acting as boards of health, to establish and maintain dental, medical, and health clinics and to conduct general education campaigns relating to health matters. G.L. c. 111, § 50. Many of these direct health services departments are aimed at adults and children who are unable to obtain private medical care. Many towns now provide flu vaccination clinics, well-baby clinics, hypertension screening, and screening for blood lead poisoning, among other community health services.

The local health authority is required to notify the state Department of Public Health within 24 hours of the discovery of a case of a communicable disease. G.L. c. 111, §§ 112 and 113. Every board is required to appoint a person (who may be a board member) to maintain a record of diseases. The board of health must notify the school committee of all reported diseases that are dangerous to the public health.

Boards of health have broad authority to regulate in environmental areas where there is a risk of adverse health consequences. Among other things, boards of health have the power to enforce state laws and regulations concerning groundwater monitoring, septic systems, underground fuel and chemical storage, landfills, incinerators and transfer stations, hazardous waste, and water supply contamination. The board of health may make and enforce regulations concerning house drainage and connection with common sewers. G.L. c. 111, § 127.

Scenic Beauty

Various statutory mechanisms are available to cities and towns with the primary aim of protecting the community's natural beauty. Among the laws are those for scenic roads, mountains and rivers.

Towns are permitted by law, G.L. c. 40, § 15C, to designate any road, other than a state highway, as a scenic road. A numbered route may be designated as a scenic road only if its entire length is located within town boundaries, and is not maintained by the state. The designation must be requested by the planning board, conservation commission, or historical commission.

Designation of a scenic road means that the planning board must give its written consent, after a hearing, before any work can be done on the road that involves cutting or removal of trees or alteration or removal of stone walls. Some communities have adopted local zoning or general bylaws which provide more clarity on standards and procedures for enforcing the Scenic Roads Act.

The Scenic Mountains Act, G.L. c. 131, § 39A, permits cities and towns in Berkshire County, by local option, to regulate development in mountain areas and protect watershed and scenic qualities.

The Scenic Rivers Art, G.L. c. 21, § 17B, permits the state to adopt orders restricting or prohibiting dredging, filling and other alterations to scenic or recreational rivers.

Solid Waste

Solid waste disposal has become a critical issue for Massachusetts cities and towns as available capacity in existing landfills continues to shrink. The state Executive Office of Energy and Environmental Affairs (EOEEA) is responsible for producing a state-wide plan for the disposal of solid waste as a policy document on which to base regulations. State regulations designed to protect groundwater and other environmental resources make finding suitable sites for waste disposal quite difficult One alternative to burying wastes is resource recovery, a process that bums solid waste to produce steam or electricity.

DEP, in cooperation with the DPH, is responsible for establishing rules and regulations for siting of landfills, refuse transfer stations, resource recovery plants, refuse composting plants, and other facilities for the storage, treatment or final disposal of waste. Landfills, for example, cannot be located in or near wetlands, in areas prone to flooding, or in proximity to either public or private water supplies.

DEP has also issued regulations to prevent air, land, and water pollution in or near landfills, incinerators, and solid waste transfer stations, and requires that such conditions be abated when and where they occur. An order to close a landfill may relate as much, if not more, to protection concerns (e.g., proximity to a water source or potential source) as to the landfill's capacity and/or operation. G.L. c. 111, § 50A.

The DEP issued a Solid Waste Master Plan to address waste management waste reduction and waste diversion, with a strong emphasis on municipal recycling programs to reduce the amount of waste which must be transported to landfills, or incinerated. The state also works with industry groups to build markets for recycled products. DEP has assisted many communities in promoting increased recycling of household waste.

The board of health is required to approve the sites for solid waste disposal facilities, under G.L. c. 111, § 150A, and furthermore hazardous waste facilities, under G.L. c. 111, § 150B.  A board permit is needed for transportation of garbage, or other offensive substances, through town streets. G.L. c. 111, § 31A.

Storm Water Management

Municipalities are subject to the federal Clean Water Act of 1972 and, with it, they need permits for their discharges of any pollutants to waters of the United States.  The primary focus of the National Pollutant Discharge Elimination System (NPDES) permit program, however, is pollutants in industrial process water and discharges from municipal sewage treatment plants.

Storm water runoff fell under the Clean Water Act after amendments in 1987 to implement a comprehensive national program addressing problematic nonagricultural sources of storm water discharges.  In 1990, the EPA put in place the NPDES Stormwater Program, in two phases.

In 1993, NPDES permits were required for storm water discharges from large and medium municipal separate storm sewer systems with populations of 100,000 or more people.  This first phase also covered eleven categories of industrial activity including construction activities greater than five acres.  Phase two was put in place in 1999, extending the permit requirements to small municipal separate storm sewer systems not already covered and construction activities disturbing between one and five acres of land.

With full delegation of permitting authority for the EPA’s NPDES Phase II Stormwater Program to the DEP, public and private entities must now develop comprehensive stormwater management programs focused on water quality, affecting many municipalities, industries, and large landowners.

Consequently, municipalities with Municipal Separate Storm Sewer Systems (MS4s) that have been designated as regulated by NPDES Phase II must now comply with all EPA- and DEP-promulgated MS4 standards.  The legally mandated programs for so-called MS4s typically deal with treatment standards, antidegradation, retrofitting treatment, low-impact development, wetlands construction and restoration, erosion and sedimentation control, pavement types, and natural alternatives.  There are currently 257 Phase II communities in Massachusetts.

Against this federal backdrop there are several sets of DEP regulations regulating storm water discharges.  One should expect storm water to be controlled in permits required under the state Clean Water Act for both surface discharges and groundwater discharges; under the Wetlands Protection Act and the Tidelands and Waterways Statutes; and in the various certification reviews for activities in Massachusetts with care seeking federal permits and grants, such as water quality certification and coastal zone consistency determinations.

Underground Storage Tanks

Underground tanks storing chemicals or petroleum products are regulated through the state's Underground Storage Tank Program, G.L. c. 21 J.  DEP has issued regulations governing the design, installation, maintenance, monitoring, and removal of tanks, and administers some reimbursement programs to assist in meeting the costs associated with cleanup and removal or replacement of tanks.

Cities and towns may adopt tougher tank standards than state and federal regulations through adoption of ordinances and bylaws. Typically, these bylaws authorize a local board or agency, such as the board of health or the fire department, to conduct an inventory of tanks in the municipality, and require local registration of underground tanks. Several communities have required the replacement of older tanks.

Wetlands, Floodplains, and Rivers

Wetlands and floodplains are protected under a variety of federal and state laws and regulations, and under local bylaws and ordinances. In Massachusetts wetlands are broadly defined to include riverfronts, banks, beaches, dunes, flats, wet meadows, and flood prone areas, in addition to vegetated wetlands, such as swamps, bogs and marshes. The state Wetlands Protection Act, G.L. c. 131, § 40, and DEP regulations cover basic procedures for protection of wetlands and flood prone areas. Many communities also have adopted local bylaws and ordinances to supplement state law and regulations.

Local conservation commissions, appointed by the selectmen or mayor, are responsible for wetlands protection by administering and enforcing a permit system. Specifically, permission of some kind is required for any work that affects wetlands and other types of what are called resource areas under the Act’s jurisdiction. The commission must hold a public hearing, consider the application known as a Notice of Intent, with plans, and issue an approval known as an Order of Conditions. These permits may restrict and prohibit work in order to protect ground water, drinking water supplies, ground water, flood storage capacity, prevent storm damage, or protect shellfish, fisheries, or wildlife habitat. Decisions of the conservation commission may be appealed to DEP and to court.

Zoning

Zoning provides the basic framework for land uses in the municipality including the constraints (and opportunities) with which landowners, businesses, industries, and even the city or town itself must deal. G.L.c. 40A (the “Zoning Act”). Understanding zoning ordinances (what they are called in cities) and bylaws (in towns) is essential.

Zoning is administered through the zoning enforcement officer (ZEO), usually the building inspector or building commissioner, who issues building permits, demolition permits, occupancy permits, violation notices, enforcement orders, and occasionally opinions or rulings on zoning questions. There is the Zoning Board of Appeals (ZBA) or other designated “permit granting authority” which can hear certain matters appealed from the ZEO or grant Special Permits and Variances. There also may be Site Plan Review of major projects conducted by the ZBA, Planning Board, or Board of Selectmen.

Typically one finds some basic environmental provisions in every zoning ordinance or bylaw, such as Floodplain Zoning (in about 80 percent of our municipalities) or Wetland Zoning (in about 20 percent). Many communities have enacted Aquifer Zoning or some other form of drinking water protection.

One commonly sees in zoning the usual categories of zoning districts for residential, commercial, industrial and maybe heavy industry; the matrix of land uses that are “permitted,” “prohibited,” and “permissible;” a table of specified setbacks around types of facilities and land uses; a set of mandated tree planting and designated buffer zones; basic elements for storm water management, rules for underground tanks for petroleum and other chemicals, preventive measures for erosion and sedimentation control, sections governing sand and gravel operations, limitations on noise (if only to avoid “nuisance conditions)” and other provisions intended to preserve residential community character yet accommodate desired government and business buildings and activities.

More advanced or developed towns and cities may have in the zoning ordinance or bylaw some sophisticated air pollution control provisions, specific standards and incentives for solar and wind energy facilities, reasonable limitations and specifications for agricultural uses, setbacks and buffer zones to protect drinking water supplies, specific zoning districts for lakes and ponds, forests and parks, and historic areas and sites, and planning provisions dealing with affordable housing. A few municipalities are making attempts, in their zoning, to accomplish some degree climate change adaptation and resiliency to natural and man-made disasters.