ST. GEORGE GREEK ORTHODOX CATHEDRAL OF WESTERN MASSACHUSETTS, INC. vs. FIRE DEPARTMENT OF SPRINGFIELD & another. [Note 1]

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. [Note 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), [Note 3] which alert local fire departments when an alarm has been sounded.

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In November, 2006, Title 7 of the Springfield city ordinances, entitled "Health and Safety," was amended with the enactment of the ordinance. [Note 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." 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]

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the specific relief it ultimately seeks" (i.e., invalidation of the ordinance) because the board is "without authority to strike down an ordinance." [Note 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 as contrary to the code and the Home Rule Amendment to the Massachusetts Constitution, [Note 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 motion.

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). 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"

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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, [Note 7] the dispute over the validity of the ordinance remains an "actual controversy." A declaratory 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. [Note 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

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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 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). [Note 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" 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

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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 board [Note 10] states that the 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

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(1976). [Note 11] See Fire Chief of Cambridge v. State Bldg. Code Appeals Bd., 34 Mass. App. Ct. 381, 384 (1993). [Note 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 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

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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 comprehensive [Note 13] legislation and 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, [Note 14] and we reach the same conclusion here: the code preempts inconsistent local regulations.

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Where the Legislature demonstrates its express intention to preempt local action, inconsistent local regulations are invalid under the Home Rule Amendment. [Note 15] See, e.g., Connors v. Boston, 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. [Note 16] Wendell, supra. In addition, the ordinance would frustrate the achievement of the stated statutory purpose of having centralized, Statewide standards in

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this area. 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. [Note 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. [Note 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.