Recent discussion
concerning the regulation of housing by cities and towns in Massachusetts has resulted
in a flashback for those of
Judge Forest
Dillon, Chief Justice of the Iowa Supreme Court, expounded the famous rule
known as Dillon’s Rule, which serves as the cornerstone of American municipal
law. Under Dillon’s Rule, a municipal
government has authority to act only when the power is granted by the express
words of a statute or the charter creating the municipal corporation. In Massachusetts, Dillon’s Rule has been
interpreted quite strictly. Personally,
I don’t like Dillon’s Rule, but it is the law.
Arguably, the last significant change to the relationship between the
Commonwealth and its cities and towns resulted from the passage of the
so-called Home Rule Amendment to the State Constitution in 1966.
Many years ago, I
served on an advisory committee which worked with Professors Frug and Barron of
the Harvard Law School to produce a volume entitled “Boston Bound” which was published
by The Boston Foundation. That volume
reminded anyone who saw fit to read it of the stringent legal limitations which
restrict the ability of the City of Boston – in contrast to most of the other
great cities of the nation – to regulate the lives of its citizens and to generate
the revenues necessary to provide needed municipal services. In recent years, the City Council, of
necessity, has petitioned the Legislature for matters as mundane as the number
of liquor licenses available in certain neighborhoods. I hope I live long enough to see a leveling
of the playing field in this regard.
There are many aspects of municipal life where there is no questioning
of a city or town’s jurisdiction. Local
government controls the public way, for example, and can regulate its use by buses,
personal vehicles, trucks, bicycles, TMCs, scooters, etc
.
In no area is
there more confusion than in the regulation of housing; there are state codes
and municipal codes which impact living conditions and regulate sinks, stoves
and other matters. It is questionable
whether the City has extensive powers to regulate housing otherwise. I am not certain of the underpinnings of
recent governmental enactments covering short term rentals, and other current topics
of public debate.
I do know what
happened in the past. In the late 1960’s
and early 1970’s, the same type of deficit spending which is occurring under
the current administration resulted in significant inflation in rents, and
otherwise. The Great and General Court
enacted Chapter 842 of the Acts of 1970 which provided that any city or
town in the Commonwealth could enact rent control. Boston did so. My recollection is that Brookline, Cambridge
and Somerville did likewise although, perhaps, one of them might have also
benefitted from a Special Act as did Boston prior to the adoption of Chapter
842.
In addition, there
was other enabling legislation which gave powers to cities and towns to enact other
laws concerning housing. In the case of
Boston, the special acts were Chapter 797 of the Acts of 1969, as amended by
Chapter 863 of the Acts of 1970. Many
years later, pursuant to rights enjoyed by the people of the Commonwealth since
the Progressive Era, the voters of the Commonwealth repealed all rent control
legislation, in 1994. As a strict
constructionist, remembering Dillon’s rule, I would argue that until some
enabling legislation is in place, or a home rule petition is sent to the
Legislature by a city or town which is then voted upon by both Houses, and
secures a gubernatorial signature, there is no broad power to regulate housing
in that community. I don’t think the
legal situation is any different than it was 50 years ago.
These are not easy
discussions, especially given the pressures upon the housing market in many of
our neighborhoods (including Jamaica Plain, where I have lived for the last 30
years). As is always the case, it is
essential that elected officials and advocates for good causes understand the historical
and legal contexts in which this discussion should be undertaken.
