Town of Wendell v. Attorney General

• Decision Date: 11 April 1985
• Citation: 394 Mass. 518,476 N.E.2d 585
• Parties: TOWN OF WENDELL et al. 1 v. ATTORNEY GENERAL et al. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 585

476 N.E.2d 585

394 Mass. 518

TOWN OF WENDELL et al. ¹ v. ATTORNEY GENERAL et al. ²

Supreme Judicial Court of Massachusetts,

Franklin.

Submitted Jan. 10, 1985.

Decided April 11, 1985.

Judith Pickett, Boston, for Town of Wendell.

Peter Shelley, Boston, for Conservation Law Foundation of New England, Inc.

Duncan S. Payne, Boston, for Western Massachusetts Electric Company & another (John F. Sherman, III, and Janis A. Callison, Westboro, for Massachusetts Electric Company & another, with him), for Massachusetts Elec. Co., et al.

Francis S. Wright, Boston, for Massachusetts Railroad Ass'n.

Madeline Mirabito Becker, Asst. Atty. Gen., for Atty. Gen.

Gregor I. McGregor, Boston, for Massachusetts Ass'n of Conservation Com'ns, amicus curiae, submitted a brief.

Before HENNESSEY, C.J., and WILKINS, LIACOS, NOLAN and O'CONNOR, JJ.

WILKINS, Justice.

The town of Wendell (town) commenced this action to challenge the Attorney General's disapproval under G.L. c. 40, § 32, of a by-law, adopted by the town at its 1981 annual town meeting, which purports to regulate the use of pesticides in the town for other than agricultural and domestic uses. The town sought an order directing the Attorney General to approve the by-law and determining that the by-law is valid. Subsequent to the Attorney General's disapproval of the by-law on November 20 1981, the Wendell board of health adopted a regulation on July 13, 1981, also purporting to regulate the use of pesticides. By counterclaims, the defendant interveners additionally raised a challenge to the validity of the board of health regulation. ³ A judge of the Superior Court affirmed the Attorney General's disapproval and ruled that the board of health regulation exceeded the board's authority. We allowed the parties' applications for direct appellate review.

The Wendell by-law, set forth in the margin as it appears in the record, ⁴ requires any person who intends to apply a pesticide within the town for other than an agricultural or domestic use to give written notice to the board of health at least ninety days prior to the proposed use. The notice must state (1) the name and chemical makeup of the pesticide to be used, (2) the date or dates of proposed use, (3) the method of application, (4) the location where it is to be used, (5) the purpose of the proposed use, and (6) the names and addresses of all abutters to the site of the proposed application. The board of health must hold a public hearing within thirty days of receipt of the notice, at which any interested person may present information and arguments for or against the proposed use. The applicant must be prepared to provide reasonable access to data relating to the pesticide and verification that it has complied with G.L. c. 132B, the Massachusetts Pesticide Control Act (act).

According to the regulation, after the hearing, the board of health must determine whether the applicant has complied with G.L. c. 132B and "that the application of the pesticide ... is not a danger to the health, enviroment [sic ] or safety to [sic ] the citizens of the" town. If the board determines the pesticide is unsafe or presents a danger or possible danger to the health, environment, or safety of the citizens of the town, it may prescribe conditions, not limited to "those restrictions put forth in" the act. The by-law does not by its terms permit the board of health to deny use of a pesticide, but it clearly authorizes the board to impose greater restrictions on the use of a pesticide than those imposed under the act.

In his explanatory letter of disapproval of the by-law, the Attorney General, acting through an assistant attorney general, stated that local, as opposed to State, regulation of pesticides was preempted by Federal law and that the by-law was also preempted by the Massachusetts Pesticide Control Act. The determination of preemption by the act was based on a conclusion that the by-law was inconsistent with State law and thus not permitted under the Home Rule Amendment. See art. 2 of the Amendments to the Constitution of Massachusetts, as appearing in art. 89 of those Amendments. See also the Home Rule Procedures Act, G.L. c. 43B, § 13. Under § 6 of the Home Rule Amendment (and § 13 of the Home Rule Procedures Act), a city or town may adopt local ordinances or by-laws to 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 in conformity with powers reserved to the general court by [§ 8 of the Home Rule Amendment] ... (emphasis supplied)." Because we conclude that the by-law was inconsistent in a significant respect with the Massachusetts Pesticide Control Act, we need not decide whether the by-law is preempted, and thus unlawful, under Federal law, as the motion judge ruled. We decide also, in the concluding portion of this opinion, that in the same respect the board of health regulation is unlawful.

We shall first discuss the appropriate standard for determining whether the Wendell by-law is "not inconsistent" with the Massachusetts Pesticide Control Act according to principles applicable under the Home Rule Amendment. Next, we shall describe the provisions of the act as they particularly relate to the issues in this case. We then demonstrate that there is nothing in the act concerning the role of municipalities in pesticide control or in the stated purpose of the act that explicitly bars all local regulation. Finally, we consider the by-law's attempt to provide greater regulation of the use of pesticides than is called for by the act and conclude that in this regard the by-law impermissibly frustrates the identifiable statutory purpose of centralized regulation of pesticide use.

In deciding whether under § 6 of the Home Rule Amendment a municipal ordinance or by-law is "not inconsistent with the constitution or laws enacted by the general court in conformity with powers reserved to the general court by" § 8 of the Home Rule Amendment, we have said that "[t]he legislative intent to preclude local action must be clear." Bloom v. Worcester, 363 Mass. 136, 155, 293 N.E.2d 268 (1973). In the Bloom case, we considered a Worcester ordinance that established and granted certain powers to a human rights commission. In holding that the ordinance was valid, we noted that there was neither an express legislative intent to forbid local activities consistent with the purpose of the State's antidiscrimination legislation nor circumstances showing that the purpose of State legislation would be frustrated so as to warrant an inference that the Legislature intended to preempt the field. Id. at 160, 293 N.E.2d 268.

The task is, of course, relatively easy if the Legislature has made an explicit indication of its intention in this respect. Id. The hard cases are those in which it is asserted that a legislative intent to bar local action should be inferred in all the circumstances. In some instances, legislation on a subject is so comprehensive that an inference would be justified that the Legislature intended to preempt the field. Id. If, however, the State legislative purpose can be achieved in the face of a local by-law on the same subject, the local by-law is not inconsistent with the State legislation, unless that legislation explicitly forbids the adoption of such a by-law. Id. at 156, 293 N.E.2d 268.

There is no presumption, as in the case of due process or equal protection challenges to legislation, in favor of the constitutionality of a by-law challenged on home rule grounds as inconsistent with a statute. However, the effect is much the same because such a by-law should be upheld against an inconsistency challenge of the type involved in this case unless the legislative intent to preclude local action is clear, either because of an explicit statement or because the local enactment prevents the achievement of a clearly identifiable purpose. See Marshfield Family Skateland, Inc. v. Marshfield, 389 Mass. 436, 440, 450 N.E.2d 605, appeal dismissed, 464 U.S. 987, 104 S.Ct. 475, 78 L.Ed.2d 675 (1983); Grace v. Brookline, 379 Mass. 43, 54, 399 N.E.2d 1038 (1979).

The question is not whether the Legislature intended to grant authority to municipalities to act concerning pesticides, but rather whether the Legislature intended to deny Wendell (and other municipalities) the right to legislate on the subject of pesticides as Wendell has. On some occasions, the answer to the question of inconsistency may be found relatively easily because of the nature and scope of the State legislation involved. See Lovequist v. Conservation Comm'n of Dennis, 379 Mass. 7, 15, 393 N.E.2d 858 (1979) (where State statute authorizes local action more stringent than provided under State statute, there is no disqualifying inconsistency between the local regulation and the State statute); New England LNG Co. v. Fall River, 368 Mass. 259, 267, 331 N.E.2d 536 (1975) (local ordinance could not regulate facilities of gas companies as to matters expressly delegated to the Department of Public Utilities); Del Duca v. Town Adm'r of Methuen, 368 Mass. 1, 12, 329 N.E.2d 748 (1975) (legislation taking the entire subject of the establishment, powers, and duties of planning boards in hand precludes inconsistent local action). In other cases, the task has been more difficult and views of the Justices sometimes have not been unanimous. See County Comm'rs of Bristol v. Conservation Comm'n of Dartmouth, 380 Mass. 706, 405 N.E.2d 637 (1980), and id. at 718, 405 N.E.2d 637 (Wilkins, J., dissenting) (county commissioners may disregard local zoning restrictions in exercising power of eminent domain); Beard v. Salisbury, 378 Mass. 435, 440-441, 392 N.E.2d 832 (1979) (majority of the court conclude that a municipality may not use its authority to regulate earth removal to forbid transport of fill out of the town on public ways); Revere v....