The Massachusetts Green Communities Act: Go Green Or Go Home

Solar PanelsAccording to a recent study, 45% of all construction projects will be green by 2014.  The trend indicates that green projects will soon be the industry standard.  From international bodies to state and local government, lawmakers at all levels are aggressively pursuing regulatory measures promoting environmentally friendly construction.  The result is a continuously changing regulatory scheme of which contractors are forced to keep close tabs or risk falling behind the competition.

On July 2, 2008, Governor Deval Patrick signed into law the Chapter 169 of the Acts of 2008, an Act Relative to Green Communities (the “Act”) in order to boost energy efficiency and encourage investment in renewable energy.  The Act established a new governmental division, known as the Green Communities Division of the Department of Energy Resources (“DOER”), tasked with identifying Massachusetts communities showing a willingness to go green.  The Act required utility companies to invest in renewable energy sources and created monetary incentives for municipalities to pursue green initiatives.  This post addresses the latter.    

To qualify for so-called Green Community Grant funds, a city or town must satisfy five criteria.  The first criterion is adopting a local zoning by-law or ordinance that allows as-of-right siting of renewable energy projects.  This means that the specific site or sites may be developed for the intended purpose described in the by-law without the need for a special permit, variance, amendment, waiver, or other discretionary approval.  However, the site remains subject to site plan review to determine compliance with local by-laws, and state and federal laws.

Second, the municipality must adopt an expedited permitting process for the as-of-right facilities.  This helps ensure that projects with as-of-right siting will not take longer than one year to receive final approval.  Town officials are often hesitant to support this expedited permitting process because of the loss of regulatory authority that comes with as-of-right siting.

Third, the city or town must establish a database of the energy usage for all municipal buildings, vehicles, and street and traffic lighting, as well as a comprehensive baseline reduction program developed to lower the baseline energy usage by 20% within a five-year period.  As one might imagine, this criterion represents a significant task for a municipality in terms of the time, effort, and labor involved.  The law suggests, and in many instances demands, adherence to a number of guidelines relative to the database and reduction program.  For example, towns are required to use energy monitoring software to establish the energy consumption of each building.  The reality is that many towns simply don’t have the resources to satisfy these requirements.

The fourth criterion for qualifying as a Green Community is purchasing only fuel efficient or zero emission vehicles for municipal use whenever available and practicable, in order to reduce carbon dioxide emissions.  Municipalities need to adopt a written fuel efficient vehicle policy from both the general government and the school district.  Certain vehicles, such fire engines, ambulances, police cruisers, and certain public works vehicles are exempt from this requirement. 

The fifth and final criterion is the adoption the “stretch code,” 780 CMR 115.AA.  In 2009, Massachusetts became the first state to adopt an above-code appendix to the base building energy code.  The stretch code provides a more energy efficient alternative to the base building energy code for new and existing buildings.  The current stretch code is based largely on the 2009 International Energy Conservation Code (“IECC”).  Many in the industry anticipate that the state, through the Board of Building Regulations and Standards (“BBRS”), will adopt the 2012 version as early as January 1, 2013, with a one-year concurrency period in which both codes are in effect. 

Implementing the stretch code is often the most time consuming and detailed of the five criteria.  It is also the criterion which commonly meets the most resistance from towns and those who work in the building and contracting field.  The stretch code contains increasingly stricter guidelines for home efficiency on the residential side and energy reduction on the commercial side.  Towns must vote on stretch code implementation through the most common available forum, which is often town meeting.  They often run into difficulty because the public doesn’t want to incur the additional financial burden, and builders and code officials don’t want to deal with the extra hassle unless they can see an immediate benefit.  

Once a community believes it has satisfied the five criteria, it then applies for Green Community designation.  Upon receiving the designation, the town may then apply for a grant for renewable/alternative energy projects.  DOER has designated regional coordinators whose job it is to assist towns with the application process. 

The stretch code is something of a moving target for builders, contractors, and those in related fields.  Please contact the Construction Group at Mirick O’Connell if you have questions about the stretch code or the Green Communities Act generally.

About David Fine

David is an partner in the firm's Litigation Group and is chair of the Construction Law Group. David serves as litigation counsel for contractors, subcontractors, suppliers and other business concerns within the construction industry. He regularly advises his clients on matters such as contract drafting and dispute resolution, surety bond claims, mechanics liens and bid protests. David works closely with a number of local and regional trade organizations, and he often lectures and writes about topics pertinent to the construction industry.
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