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Assistant City Solicitor responding to #209663, requesting an ordinance requiring pollution mitigation for new housing built along high transit roadways.
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To the Honorable City Council:
I write in response to Board Order No. 209663, which asks the City Solicitor’s office to “draft an ordinance requiring pollution mitigation for new housing built along high transit roads and highways.” It is my understanding that this order derives from Board Order Nos. 205244 and 207124, both of which have previously been discussed in the Land Use Committee as part of the zoning code overhaul.
As previously discussed at the March 5, 2019 meeting, the Board of Health has statutory authority to regulate and control atmospheric pollution, including adopting reasonable rules and regulations. M.G.L. c. 111, §31C. This authority includes not just regulating emissions, but also other regulatory measures aimed to reduce the nuisance or danger to public health caused by emissions. See Fitz-Inn Auto Parks, Inc. v. Boston, 389 Mass. 79, 82 (1983) (finding that limiting off-street parking to reduce car emissions is a proper exercise of M.G.L. c. 111, §31C). Therefore, it is my opinion that a regulation, as described and discussed in previous Land Use Committee meetings, is the jurisdiction of the City’s Board of Health. A City Council ordinance would impermissibly usurp the Board’s statutory authority in this matter.
This is further borne out by the fact that M.G.L. c. 111, §31C has certain requirements that must be fulfilled in order for such a Board of Health regulation to be enacted. A public hearing must be noticed and held, and the regulation must be approved by the MA Department of Environmental Protection. Were the City Council to enact an ordinance following its standard legislative process, these statutory conditions would not be met.
Therefore, in my opinion, the City Council should request this matter be taken up by the Board of Health.
Please let me know if I may be of further assistance in this matter.
Sincerely,
Hannah Pappenheim
Assistant City Solicitor