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City approved Radio Box nixed in Massachusetts

June 4, 2022
City approved Radio Box nixed in Massachusetts
          One of the alarm experts commenting in yesterday sent a case from 2012 which struck down a law in Springfield Massachusetts requiring a Radio Box and local fire department monitoring.  The impetus of the decision was that the state had  mandated building codes that dealt with fire alarms and a local municipality could not override the state codes.  Here is the decision from 2012.
NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-
Hampden. January 6, 2012. - May 4, 2012.
Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, &
Lenk, JJ.
Fire Prevention. State Building Code. Municipal Corporations,
By-laws and ordinances, Enforcement of building code.
Constitutional Law, Home Rule Amendment. Declaratory
Relief. Practice, Civil, Declaratory proceeding.
Administrative Law, Exhaustion of remedies.
Civil action commenced in the Superior Court Department on
August 13, 2009.
The case was heard by Cornelius J. Moriarty, II, J., on a
motion for summary judgment.
The Supreme Judicial Court on its own initiative transferred
the case from the Appeals Court.
Thomas D. Moore, Associate City Solicitor (Edward M. Pikula,
City Solicitor, with him) for the defendants.
John H. Fitz-Gibbon (John J. Green, Jr., with him) for the
The following submitted briefs for amici curiae:
John J. Clifford for Fire Chiefs Association of
Martha Coakley, Attorney General, & Peter Sacks, Assistant
Attorney General, for State Board of Building Regulations and
2 We acknowledge the amicus brief of the New England Legal
Foundation and NAIOP Massachusetts in support of the plaintiff;
and the amicus briefs of the State Board of Building Regulations
and Standards (board) and the Fire Chiefs Association of
3 "All fire protective signaling systems and automatic fire
detection systems required by 780 [Code Mass. Regs.] shall be
supervised by one of the following methods below:
John Pagliaro & Martin J. Newhouse for New England Legal
Foundation & another.
LENK, J. The State Building Code, 780 Code Mass. Regs.
§§ 101.00 (2010) (code), permits the installation of any one of
four types of approved "fire protective signaling systems and
automatic fire detection systems" in buildings throughout the
Commonwealth. See 780 Code Mass. Regs. § 907.14.3 (2008). In
2006, the city of Springfield (city) enacted an ordinance that,
in essence, proscribes the installation of all but one of the
systems allowed by the code. See § 7.13.035 (ordinance) of the
Revised Ordinances of the City of Springfield (city ordinances).
The question before us is whether the code preempts the
ordinance. We hold that it does.2
1. Background. In 1972, the Legislature empowered the
State board of building regulations and standards (board) to
"adopt and administer a state building code." G. L. c. 143,
§ 93. See St. 1972, c. 802; St. 1974, c. 541. Pursuant to this
authority, the board set forth four alternatives for required
"fire protective signaling systems and automatic fire detection
systems," 780 Code Mass. Regs. § 907.14.3 (2008),3 which alert
"1. A UL listed or FM approved Central Station Service in
accordance with NFPA 72 as listed [in] 780 [Code Mass. Regs. §§]
"2. . . . Approved propriety supervising station system, in
accordance with NFPA 72 as listed in 780 [Code Mass. Regs. §§]
"[3.] Approved remote station fire alarm system supervising
station in accordance with NFPA 72 as listed in 780 [Code Mass.
Regs. §§] 35.00.
"[4.] Alarm signals to an approved Auxiliary Fire Alarm
System in accordance with NFPA 72, with supervisory signals
supervised by one or two above or at a constantly attended
location approved by the local fire department, having personnel
on duty trained to recognize the type of signal received and to
take prescribed action. This shall be permitted to be a location
different from that at which alarm signals are received."
780 Code Mass. Regs. § 907.14.3 (2008).
4 Section 7.13.035 (ordinance) of the Revised Ordinances of
the City of Springfield (city ordinances) provides:
"A. No Master Box shall be installed in the City of
Springfield after the adoption of this ordinance.
"B. Any construction underway before or after the
adoption of this ordinance calling for the installation of a
Master Box shall instead have a City approved Radio Box
"C. All Master Boxes located in the City of
Springfield must be replaced with a City approved Radio Box
by December 21, 2008. The owner(s) of the property where
the Master Box is located shall be responsible for any and
all costs of compliance with this ordinance."
local fire departments when an alarm has been sounded.
In November, 2006, Title 7 of the Springfield city
ordinances, entitled "Health and Safety," was amended with the
enactment of the ordinance.4 The ordinance requires that all
buildings in the city utilize the fourth option contemplated by
the code, which it described as a "[c]ity approved Radio Box."
5 The board issued an advisory ruling, however, noting that
the ordinance is in "direct conflict" with the State Building
Code, 780 Code Mass. Regs. §§ 101.00 (2010) (code), and thus
"appears to impermissibly directly regulate in an area which has
been reserved for the [c]ode." As amicus on behalf of the
church, the board takes the position that the code preempts the
Under the terms of the penalty provision of the ordinance,
failure to comply "shall be punished by a fine of One Hundred
Dollars ($100.00) per calendar day" and "each calendar day on
which the violation exists shall be deemed to be a separate
offense." § 7.13.050 of the city ordinances.
Contrary to the ordinance, but in compliance with the code,
the plaintiff, St. George Greek Orthodox Cathedral of Western
Massachusetts, Inc. (church), installed a system of the sort set
out as the first alternative in the relevant code provision
during its April, 2009, renovations to the St. George Greek
Cultural Center. After an inspection by the city's fire
department in June, 2009, the city sent an "invoice" detailing a
$3,000 "[v]iolation fine" owed by the church. The church
appealed to the board, which ruled that the church had complied
with the code. The board held that it was "without jurisdiction
to grant [the church] the specific relief it ultimately seeks"
(i.e., invalidation of the ordinance) because the board is
"without authority to strike down an ordinance."5
The church then filed an action in the Superior Court
seeking a judgment declaring the ordinance and its penalty
provision invalid. Arguing that the ordinance is unenforceable
6 The Home Rule Amendment, art. 89, § 6, of the Amendments
to the Massachusetts Constitution, provides, in relevant part:
"Any city or town may, by the adoption, amendment, or repeal of
local ordinances or by-laws, exercise any power or function which
the general court has power to confer upon it, which is not
inconsistent with the constitution or laws enacted by the general
court" (emphasis supplied).
as contrary to the code and the Home Rule Amendment to the
Massachusetts Constitution,6 the church moved for summary
judgment; a Superior Court judge allowed the church's motion,
thereby invalidating the challenged provisions. After the city
appealed, we transferred the case to this court on our own
2. Discussion. a. Standard of review. We review a
decision to grant summary judgment de novo. See Ritter v.
Massachusetts Cas. Ins. Co., 439 Mass. 214, 215 (2003). "The
standard of review of a grant of summary judgment is whether,
viewing the evidence in the light most favorable to the nonmoving
party, all material facts have been established and the moving
party is entitled to a judgment as a matter of law." Augat, Inc.
v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).
b. Declaratory judgment. At the outset, the city objects
to the appropriateness of the church's declaratory judgment
action. Pursuant to G. L. c. 231A, § 1, the Superior Court "may
on appropriate proceedings make binding declarations of right,
duty, status and other legal relations sought thereby . . . in
any case in which an actual controversy has arisen and is
specifically set forth in the pleadings" (emphasis supplied).
7 The city's argument that its own invoice, describing a
"[v]iolation fine," is unenforceable is in any event without
merit. The invoice purportedly assessing the "violation fine"
provides the reason for the fine, cites the ordinance and its
penalty provision as authority for the fine, and states the
amount of the fine. In addition to the absence of any supporting
authority for its position, the city maintains, in seemingly
contradictory fashion, that the church's failure to exhaust its
administrative remedies involved "failure to file an appeal" of
the very fine the city otherwise describes as defective.
The city first argues that no "actual controversy" exists because
"the record does not show that the [c]hurch has been cited for
any violation of a Springfield [c]ity [o]rdinance." The city
characterizes the invoice purportedly assessing a $3,000 fine as
"defective on its face" for failure to "include any information
about appeals . . . , the citing officer or the circumstances
surrounding the alleged violation."
An "actual controversy" plainly exists between the city and
the church. An "actual controversy," a requirement that is to be
"liberally construed," G. L. c. 231A, § 9, is presented where
there exists "a 'real dispute' caused by the assertion by one
party of a duty, right, or other legal relation in which he has a
'definite interest,' in circumstances indicating that failure to
resolve the conflict will almost inevitably lead to litigation."
Entergy Nuclear Generation Co. v. Department of Envtl.
Protection, 459 Mass. 319, 325 (2011), quoting District Attorney
for the Suffolk Dist. v. Watson, 381 Mass. 648, 659 (1980).
Regardless whether the "invoice" describing a "[v]iolation fine"
was actually effective,7 the dispute over the validity of the
ordinance remains an "actual controversy." A declaratory
8 Indeed, the city has been vigilant about ensuring
compliance with the ordinance, ordering the systems changed on
250 parcels of real property that were not in compliance.
According to the city, only six remain in noncompliance.
judgment action "may be used to secure determinations of right,
duty, status or other legal relations under . . . a . . .
municipal ordinance or by-law . . . including determination of
any question of construction or validity thereof which may be
involved in such determination." G. L. c. 231A, § 2. By
maintaining its existing system, the church continues to violate
the ordinance; in theory, the city could issue an enforceable
violation notice at any time, with the fine increasing each day
the church remains in violation of the ordinance.8 Relief will
therefore alleviate any "uncertainty and insecurity with respect
to rights, duties, status and other legal relations." G. L.
c. 231A, § 9.
The city next argues that the church failed to exhaust its
administrative remedies. See G. L. c. 231A, § 3. This claim is
unavailing. The church has already appealed to the board, which
correctly held that it did not have the power to invalidate the
ordinance. The city does not suggest any other administrative
remedy the church could have pursued. As no other avenue of
administrative appeal has been authorized by which to strike down
the ordinance, the church had no such remedy to exhaust. See
Ciszewski v. Industrial Acc. Bd., 367 Mass. 135, 141 (1975).
Regardless, we have previously not required exhaustion in cases
challenging a regulation's constitutionality, see Doe, Sex
9 Although we conclude that both challenged requirements are
amply met, to the extent there is a "measure of discretion in
deciding whether a case is appropriate for declaratory relief,"
Boston v. Keene Corp., 406 Mass. 301, 305 (1989), "because the
issue is important, and might recur, we exercise our discretion
to express our views on the issue." Andrade v. City Council of
Gloucester, 406 Mass. 337, 338 (1989).
Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459
Mass. 603, 629-630 (2011), and cases cited, and we see no reason
not to extend this exception to constitutional challenges to
local ordinances, particularly where, as here, the parties have
stipulated to all relevant facts, and therefore no additional
agency fact finding is necessary for us to answer the purely
legal question presented. See Kelleher v. Personnel Adm'r of the
Dep't of Personnel Admin., 421 Mass. 382, 385 (1995).9
c. Preemption. Under the Home Rule Amendment, "[a]ny city
or town may, by the adoption, amendment, or repeal of local
ordinances or by-laws, exercise any power or function which the
general court has power to confer upon it, which is not
inconsistent with the constitution or laws enacted by the general
court . . . ." See G. L. c. 43B, § 13 (Home Rule Procedures
Act). Insofar as the ordinance conflicts with G. L. c. 143,
§ 93, and the code, the church contends that it is "inconsistent"
with a law enacted by the General Court and thus impermissible
under the Home Rule Amendment. The city, however, maintains that
the ordinance is not inconsistent with the code because it allows
buildings in the city to utilize one of the four "fire protective
signaling systems and automatic fire detection systems"
10 It is of no moment that the code is promulgated by the
board rather than directly by the Legislature. See Boston Gas
contemplated by the code. According to the city, such a
narrowing of options does not render the ordinance more
restrictive than, or inconsistent with, the code.
In assessing the inconsistency of local enactments with the
General Laws, "[t]he legislative intent to preclude local action
must be clear." Bloom v. Worcester, 363 Mass. 136, 155 (1973)
(Bloom). This intent can be either express or inferred. In
other words, local action is precluded either where the
"Legislature has made an explicit indication of its intention in
this respect," or "the purpose of State legislation would be
frustrated [by a local enactment] so as to warrant an inference
that the Legislature intended to preempt the field." Wendell v.
Attorney Gen., 394 Mass. 518, 524 (1985) (Wendell).
In authorizing the development of the code, the Legislature
has expressly stated its intention: to ensure "[u]niform
standards and requirements for construction and construction
materials . . . ." G. L. c. 143, § 95 (a). The Legislature has
also defined explicitly the board's responsibility to "recommend
or require tests and approvals and specify criteria and
conditions, of materials, devices, and methods of construction,"
and stated that "[t]he board shall issue certification of such
acceptability, which certification shall be binding on all cities
and towns" (emphasis supplied). G. L. c. 143, § 94 (d).
Further, the statute establishing the board10 states that the
Co. v. Somerville, 420 Mass. 702, 704 (1995); Wendell v. Attorney
Gen., 394 Mass. 518, 527 (1985). "[A] properly promulgated
regulation has the force of law . . . and must be accorded all
the deference due to a statute" (citations omitted). Borden,
Inc. v. Commissioner of Pub. Health, 388 Mass. 707, 723, cert.
denied sub nom. Formaldehyde Inst., Inc. v. Frechette, 464 U.S.
936 (1983).
11 A report accompanying the legislation establishing the
code described it as a response to the "growing complexity of the
building enterprise" and the recognition that "very few
municipalities have the expertise or funds to keep abreast of all
the changes necessary to keep their codes current and to enforce
them through proper administration." Report of the Department of
Community Affairs Relative to the Development, Administration and
Enforcement of Building Codes, 1972 House Doc. No. 5008, at 5.
The report also described the proposed legislation as useful to
"establish[ing] statewide uniformity," id. at 6, and
"eliminat[ing] current local restrictions of new materials and
technology and permit[ting] uniformity of application." Id. at
code "shall be binding and have the full force and effect of law
on January [1, 1975], in all cities and towns notwithstanding any
special or general law to the contrary." St. 1972, c. 802, § 67.
That statute further provides that, "[a]ll by-laws and ordinances
of cities and towns or regulations promulgated by any state
boards, commissions, agencies or departments or any special acts
. . . in conflict with the state building code shall cease to be
effective on January [1, 1975]." St. 1972, c. 802, § 75, as
appearing in St. 1975, c. 144, § 1. "The above quoted sections,
together with the whole of [St. 1972,] c. 802[,] and its
subsequent amendments, evince a clear legislative intent . . . to
create uniform standards throughout the Commonwealth for the
construction of buildings and materials used therein . . . ."
Shriners' Hosp. for Crippled Children v. Boston Redevelopment
Auth., 4 Mass. App. Ct. 551, 560 (1976).11 See Fire Chief of
12 The city's contention that its ordinance furthers this
goal because it ensures "uniformity throughout the [c]ity" is
unavailing. The uniformity contemplated by the statute is
clearly Statewide uniformity, not uniformity within each
individual municipality.
Cambridge v. State Bldg. Code Appeals Bd., 34 Mass. App. Ct. 381,
384 (1993).12
The intent to preempt local ordinances is reflected also in
other sections of the chapter. "A conclusion that the
Legislature intended to preempt a subject may also be inferred if
the Legislature has explicitly limited the manner in which cities
and towns may act on that subject." Bloom, supra at 155. Here,
the Legislature has done just that, establishing a mechanism
through which a municipality may request that the board allow it
to utilize more restrictive standards than those required by the
code. See G. L. c. 143, § 98. The city, however, did not seek
board approval of its ordinance. Such a mechanism would serve no
purpose had the Legislature not intended the code to preempt
local building regulations. Any other view of G. L. c. 143,
§ 98, would impermissibly render it superfluous. See Banushi v.
Dorfman, 438 Mass. 242, 245 (2002).
Our decision in Wendell, supra, is instructive. The town of
Wendell had adopted a bylaw regulating the use of pesticides. It
required anyone who intended to apply pesticides in the town to
give notice to the local board of health, which could then hold a
public hearing at which any interested person could argue for or
13 The sheer comprehensiveness of the code itself
demonstrates the Legislature's intention to foreclose
inconsistent local enactments. "Where legislation deals with a
subject comprehensively, it 'may reasonably be inferred as
intended to preclude the exercise of any local power or function
on the same subject because otherwise the legislative purpose of
that statute would be frustrated.'" Dartmouth v. Greater New
Bedford Regional Vocational Technical High Sch. Dist., 461 Mass.
366, 375 (2012), quoting Boston Teachers Union, Local 66 v.
Boston, 382 Mass. 553, 564 (1981). The Legislature empowered the
board "[t]o formulate, propose, adopt and amend rules and
regulations," i.e., the code, which would govern "the
construction, reconstruction, alteration, repair, demolition,
removal, inspection, issuance and revocation of permits or
licenses, installation of equipment, classification and
definition of any building or structure and use or occupancy of
all buildings and structures and parts thereof or classes of
buildings and structures and parts thereof" and "the standards or
against the proposed use. Id. at 520-522. This bylaw, however,
was adopted without regard to the Massachusetts Pesticide Control
Act (MPCA), which comprehensively addressed the distribution and
registration of pesticides. The MPCA also established a
"pesticide board" within the Department of Food and Agriculture,
and empowered a subcommittee of the board to register pesticides
for general or restricted use. Id. at 526. We held that the
Wendell bylaw was preempted by the MPCA. The effect of the
bylaw, we concluded, would be to impose "conditions on the use of
a pesticide beyond those established on a Statewide basis under
the [MPCA]." Id. at 528. To allow a locality to impose
additional requirements and "second-guess the determination of
the State board would frustrate the purpose of the [MPCA]." Id.
at 529.
The same reasoning applies here. The Legislature intended
to occupy a field by promulgating comprehensive13 legislation and
requirements for materials to be used in connection therewith,
including but not limited to provisions for safety, ingress and
egress, energy conservation, and sanitary conditions." G. L.
c. 143, § 94 (a). Indeed, while specialized codes governing fire
prevention and safety predated enactment of the code, these were
incorporated into the code by G. L. c. 143, § 96, thus forming a
comprehensive system of regulation at the State level.
14 Contrary to the city's claim, Lovequist v. Conservation
Comm'n of Dennis, 379 Mass. 7 (1979), is not applicable here. In
Lovequist, we held that a local bylaw was not preempted by the
State Wetlands Protection Act because it "sets forth minimum
standards only, 'leaving local communities free to adopt more
stringent controls.'" Id. at 15, quoting Golden v. Selectmen of
Falmouth, 358 Mass. 519, 526 (1970). Unlike the Wetlands
Protection Act at issue in Lovequist, G. L. c. 143 and the code
are intended to occupy the field of building regulation.
15 The complaint suggests that only one vendor of the
permitted "[c]ity approved Radio Box" actually exists, located in
Wilbraham, a town located near Springfield. If so, the ordinance
may also depart from the statutory purpose of avoiding
"unwarranted preferential treatment of . . . products." G. L.
c. 143, § 95 (c).
delegating further regulation to a State board. The board's
regulations, in turn, set a Statewide standard as to what
products and practices were permissible in a particular field, a
process involving a discretionary weighing of relevant factors
such as cost and safety. In response, the local government
created an additional layer of regulation imposing requirements
beyond those contemplated by the board. There is no meaningful
distinction between these cases,14 and we reach the same
conclusion here: the code preempts inconsistent local
Where the Legislature demonstrates its express intention to
preempt local action, inconsistent local regulations are invalid
under the Home Rule Amendment.15 See, e.g., Connors v. Boston,
16 According to the city's submissions, by mandating this
"[c]ity approved Radio Box," the city is attempting to circumvent
third-party relay of fire alarms and thereby increase response
times. We are not indifferent to the city's concerns. The
Legislature, however, has placed in the board the responsibility
for determining, on a Statewide basis, what "fire protective
signaling systems and automatic fire detection systems" are
permitted in Massachusetts. The board has provided building
owners throughout the Commonwealth with a choice from among four
specified systems, a reflection of its judgment that all four
options sufficiently protect public safety. Pursuant to the
statute, the board has an obligation to "make a continuing study
of the operation of the [code] . . . to ascertain [its] effect
upon the cost of building construction and the effectiveness of
[its] provisions for health, safety, energy conservation and
security." G. L. c. 143, § 94 (c). The board, which by statute
must include the State fire marshal and the head of a municipal
fire department, see G. L. c. 143, § 93, is best able to balance
these objectives. Because of this expertise, the Legislature has
delegated such decisions to the board, and we will neither second
guess its determinations ourselves nor allow municipalities to do
But the city is not without recourse. First, it could avail
itself of the statutory mechanism described above, G. L. c. 143,
§ 98, and request that the board allow it to utilize a more
restrictive standard. Second, the city "may propose amendments
to the state building code," which "shall" be considered at
public hearings held twice annually. G. L. c. 143, § 97. Third,
the city could pursue direct action in the Legislature to change
the code.
430 Mass. 31, 39-40 (1999). Once the board has determined that a
certain system is consistent with its responsibility to "reduce
the cost of construction and maintenance over the life of the
building without affecting the health, safety and security of the
occupants or users of buildings," G. L. c. 143, § 95 (b), any
subsequent local action amounts to "in effect second-guessing"
the board's decision.16 Wendell, supra. In addition, the
ordinance would frustrate the achievement of the stated statutory
purpose of having centralized, Statewide standards in this area.
17 There is no merit to the city's contention that the
ordinance is no more restrictive than the code because it merely
narrows the permissible options among State-approved
alternatives. See Connors v. Boston, 430 Mass. 31, 38 (1999)
(rejecting argument that State law requires only "floor" as
opposed to "ceiling" health coverage). By establishing the
board, the Legislature intended to ensure Statewide uniformity in
building practices. The board, in turn, has approved four "fire
protective signaling systems and automatic fire detection
systems" for use in buildings in the Commonwealth. The city's
argument elides the fact that, by permitting only one of the
State-approved options, it has also foreclosed three other such
options. The facts of this case demonstrate the inconsistency of
the city ordinance with the code: the code permits the church's
system and the ordinance does not.
18 For example, the code allows roofs of one-family and twofamily
residences to be made of at least eight different
materials, 780 Code Mass. Regs. §§ 5905.1-5905.11 (2010), and
allows a choice of among six materials for their exterior siding.
780 Code Mass. Regs. §§ 5703.00 (2010).
See id. Whether construing the Legislature's stated intention of
ensuring uniformity in building regulations either as an explicit
statement of its desire to foreclose local action, or as a
statutory purpose that would be frustrated thereby, the ordinance
cannot stand.17
If all municipalities in the Commonwealth were allowed to
enact similarly restrictive ordinances and bylaws, a patchwork of
building regulations would ensue. Other sections of the code
also provide alternative means of compliance.18 Allowing the
city's ordinance to stand would permit a similar narrowing of
options in such sections, sanctioning the development of
different applicable building codes in each of the Commonwealth's
351 cities and towns, precisely the result that promulgation of
the code was meant to foreclose.
Judgment affirmed.

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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301