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SJC-11612

EASTHAMPTON SAVINGS BANK & others1 vs. CITY OF SPRINGFIELD.

Suffolk. September 4, 2014. - December 19, 2014.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & 

Hines, JJ.

Constitutional Law, Home rule, Home Rule Amendment. Municipal 

Corporations, Home rule, By-laws and ordinances, Fees. 

Mortgage, Foreclosure. Massachusetts Oil and Hazardous 

Material Release Prevention Act. State Sanitary Code.

Certification of questions of law to the Supreme Judicial 

Court by the United States Court of Appeals for the First 

Circuit. 

Tani E. Sapirstein for the plaintiffs.

Thomas D. Moore, Associate City Solicitor (Lisa C. deSousa, 

Associate City Solicitor, with him) for the defendant.

The following submitted briefs for amici curiae:

Lee D. Goldstein for Harvard Legal Aid Bureau & others.

Robert G. Rowe, III, of the District of Columbia, for 

American Bankers Association, Inc.

Francis J. Nolan & Nathalie K. Salomon for Real Estate Bar 

Association for Massachusetts, Inc., & another.

Michael McDonagh for Massachusetts Association of Realtors.

 

1 Chicopee Savings Bank, Hampden Bank, United Bank, Monson 

Savings Bank, and Country Bank for Savings.
2

Henry C. Luthin, First Assistant Corporation Counsel, & 

Brandon H. Moss for Massachusetts Municipal Lawyers Association, 

Inc.

William F. Sheehan, of the District of Columbia, & Brenda 

R. Sharton & Thomas M. Hefferon for Massachusetts Bankers 

Association, Inc.

SPINA, J. We consider in the present case challenges 

brought against two ordinances adopted by the city of 

Springfield (city) in response to a wave of foreclosures 

triggered by the economic downturn of 2008. The United States 

Court of Appeals for the First Circuit has certified the 

following questions to this court, pursuant to S.J.C. Rule 1:03, 

as appearing in 382 Mass. 700 (1981):

2 

"1. Are Springfield's municipal ordinances Chapter 

285, Article II, 'Vacant or Foreclosing Residential 

Property' (the [f]oreclosure [o]rdinance) or Chapter 182, 

Article I, 'Mediation of Foreclosures of Owner-Occupied 

Residential Properties' (the [m]ediation [o]rdinance) 

preempted, in part or in whole, by those state laws and 

regulations identified by the plaintiffs?

"2. Does the [f]oreclosure [o]rdinance impose an 

unlawful tax in violation of the Constitution of the 

Commonwealth of Massachusetts?"

Easthampton Sav. Bank v. Springfield, 736 F.3d 46, 53 (1st Cir. 

2013). 

 

2 Supreme Judicial Court Rule 1:03, as appearing in 382 

Mass. 700 (1981), provides: "This court may answer questions of 

law certified to it by . . . a Court of Appeals of the United 

States . . . when requested by the certifying court if there are 

involved in any proceeding before it questions of law of this 

State which may be determinative of the cause then pending in 

the certifying court and as to which it appears to the 

certifying court there is no controlling precedent in the 

decisions of this court." 
3

We answer the first question that the mediation ordinance 

is preempted by G. L. c. 244 and that the foreclosure ordinance 

is preempted by G. L. c. 21E and G. L. c. 111 but not by G. L. 

c. 244. We answer the second question in the negative.3 

1. Procedural background. We summarize certain undisputed 

facts in the order of certification and in the record before us. 

In 2011, in response to an increased number of foreclosures due 

to the housing market collapse of 2008 and its effect on public 

safety, the city enacted two ordinances addressing properties 

left vacant during or after the foreclosure process. The 

plaintiffs, six banks holding mortgage notes on properties in 

Springfield, filed suit in State court seeking declaratory and 

injunctive relief from the enforcement of the ordinances. The 

defendant city removed the case to Federal court. The Federal 

District Court allowed the city's motion for summary judgment. 

The plaintiffs appealed to the United States Court of Appeals

for the First Circuit. That court determined that the outcome 

of the case centered on unresolved questions of Massachusetts 

 

3 We acknowledge the amicus briefs filed by the 

Massachusetts Bankers Association, Inc.; the American Bankers 

Association, Inc.; the Massachusetts Association of Realtors;

and the Real Estate Bar Association for Massachusetts, Inc., and 

the Abstract Club in support of the plaintiffs, and the Harvard 

Legal Aid Bureau, National Consumer Law Center, National 

Community Reinvestment Coalition, Massachusetts Law Reform 

Institute, and Massachusetts Alliance Against Predatory Lending; 

and the Massachusetts Municipal Lawyers Association, Inc., in 

support of the defendants. 
4

law better suited for this Court. We now consider the questions 

presented to this court. 

2. Springfield ordinances. The two ordinances deal 

specifically with the foreclosure process. The mediation

ordinance is entitled "Facilitating Mediation of Mortgage 

Foreclosures of Owner Occupied Residential Properties" and is 

codified in Chapter 7.60 of Title 7 of the Revised Ordinances of 

the city of Springfield, 1986, as amended (city ordinances). 

The foreclosure ordinance is entitled "Regulating the 

Maintenance of Vacant and/or Foreclosing Residential Properties 

and Foreclosures of Owner Occupied Residential Properties," and 

is codified in Chapter 7.50 of Title 7 of the city ordinances.

a. Mediation ordinance. The mediation ordinance 

establishes a program requiring mandatory mediation between 

mortgagors and mortgagees. The ordinance requires that, upon 

giving notice of a default and the statutory right of redemption

to the mortgagor, mediation must begin within forty-five days. 

The mediation consists of a conference between the mortgagor and 

mortgagee in which the parties must make a good faith effort to 

renegotiate the terms of the mortgage that was the subject of 

the notice or otherwise to resolve the pending foreclosure. If,

after a mediation conference, the city-provided mediation 

program manager determines that the mortgagee has made a good 

faith effort to mediate but that the parties were unable to come
5

to an agreement to avoid foreclosure, the manager will issue a 

certificate stating that the mortgagee has satisfied the 

requirements of the mediation ordinance and authorizing the 

mortgagee to proceed with its rights pursuant to G. L. c. 244. 

Failure of a mortgagee to comply with the mediation ordinance 

results in a $300 fine with each day of noncompliance 

constituting a separate violation.

b. Foreclosure ordinance. The foreclosure ordinance 

requires owners of buildings that are vacant or undergoing 

foreclosure to register with the city. The definition of 

"owner" includes "a mortgagee of any such property who has 

initiated the foreclosure process." Under the ordinance, the 

mortgage foreclosure process is initiated by "taking possession 

of a residential property pursuant to [G. L. c. 244, § 1]; [or 

by] commencing a foreclosure action on a property in any court 

of competent jurisdiction, including without limitation, filing 

a complaint in Land court under the Servicemembers Civil Relief 

Act -- Public Law 108-189 (50 U.S.C.S. App. § 501-536)." In 

addition, "where the mortgage authorizes [the] mortgagee entry 

to make repairs upon the mortgagor's failure to do so," the 

mortgagee has "initiated" the foreclosure process. Read 

together, a mortgagee whose mortgage expressly authorizes entry 

to make repairs upon the mortgagor's failure to do so is an 
6

owner under the ordinance without any consideration as to 

whether the mortgagor has vacated the property. 

Under the foreclosure ordinance, an "owner" as defined in 

the ordinance is responsible for the maintenance of the 

property. The ordinance specifies the minimum requirements of 

maintenance, including the filing of a space utilization plan 

with the fire commissioner; the removal of hazardous material 

from the property; the securing of windows and doorways or the 

provision of twenty-four hour on-site security; the removal of 

trash, debris, and stagnant water; the draining of water from 

plumbing if the property is vacant; the procurement of liability 

insurance for the property; and the provision of a $10,000 cash 

bond against the possibility of noncompliance. Upon the 

satisfaction of these conditions, the city will issue a 

certificate of compliance to the owner.

If an owner fails to register a vacant or foreclosing 

property with the city and to obtain a certificate of 

compliance, the building commissioner, once notified, is 

empowered to give notice and order the owner to bring the 

property into compliance with the foreclosure ordinance. 

Failure to comply with an order to register and its attendant 

conditions authorizes the building commissioner and his agents 

to enter the property to inspect it and bring it into compliance 

with the ordinance. An owner must pay any expenses incurred by 
7

the commissioner in securing an unregistered property within 

seven days of receipt of notice, or the city may file a notice 

of claim against the property and obtain a lien. The 

ordinance's requirement of a $10,000 bond ensures that, should 

the owner of a property subject to the ordinance fail to 

maintain the property according to the strictures of the 

ordinance, the city will be able to recoup the costs of entering 

the property and satisfying the maintenance requirements. If 

the property is registered and the owner fails to pay the 

expenses incurred by the city, the city may draw down the posted 

bond. Furthermore, the city will retain an unspecified portion 

of the bond as "an administrative fee to fund an account for 

expenses incurred in inspecting, securing, and marking said 

building and other such buildings that are not in compliance 

with [the foreclosure ordinance]."4 Finally, failure to comply 

with the foreclosure ordinance results in a $300 per day fine 

with each day constituting a separate violation. 

3. Preemption. The Home Rule Amendment authorizes a 

municipality by ordinance or bylaw 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 

 

4 The city has represented that this fee would likely be 

between $500 and $1000. Easthampton Sav. Bank v. Springfield, 

736 F.3d 46, 49 n.3 (1st Cir. 2013). 
8

general court by section eight" of the Home Rule Amendment. See 

art. 89, § 6, of the Amendments to the Massachusetts 

Constitution. See also G. L. c. 43B, § 13 (Home Rules 

Procedures Act). Municipal bylaws are presumed to be valid. 

Marshfield Family Skateland, Inc. v. Marshfield, 389 Mass. 436, 

440 (1983). The plaintiffs argue that the ordinances are 

inconsistent with several laws enacted by the General Court and 

thus are unconstitutional. The city argues that no conflict 

exists with the specified laws and that, should this court 

conclude otherwise, the foreclosure ordinance by its own 

language avoids any conflict. 

In determining whether a local ordinance or bylaw is 

inconsistent with a State statute, the "question is not whether 

the Legislature intended to grant authority to municipalities to 

act . . . , but rather whether the Legislature intended to deny 

[a municipality] the right to legislate on the subject [in 

question]." Wendell v. Attorney Gen., 394 Mass. 518, 524 

(1985). Municipalities enjoy "considerable latitude" in this 

regard. Bloom v. Worcester, 363 Mass. 136, 154 (1973). There 

must be a "sharp conflict" between the ordinance or bylaw and 

the statute before a local law is invalidated. Id. Such a 

conflict "appears when either the legislative intent to preclude 

local action is clear, or, absent plain expression of such 

intent, the purpose of the statute cannot be achieved in the 
9

face of the local by-law." Grace v. Brookline, 379 Mass. 43, 54 

(1979). 

Legislative intent to preclude local action can be express 

or inferred. St. George Greek Orthodox Cathedral of W. Mass., 

Inc. v. Fire Dep't of Springfield, 462 Mass. 120, 126 (2012). 

When express, the task of determining the inconsistency between 

a local enactment and a State law is relatively easy. See 

Wendell, 394 Mass. at 524. More difficult are the instances 

when the Legislature is silent on the issue of local regulation 

and a party challenging a local enactment asserts that "a 

legislative intent to bar such local action should be inferred 

in all the circumstances." Id. When "legislation on a subject 

is so comprehensive that an inference would be justified that 

the Legislature intended to preempt the field," a municipal law 

cannot stand. Id. See Anderson v. Boston, 376 Mass. 178, 186 

(1978) (construing campaign finance laws as "preempting any 

right which a municipality might otherwise have to appropriate 

funds for the purpose of influencing the result on a referendum 

question"). "In a close case, the considerations influencing 

the decision depend on the particular circumstances and a 

perception of the extent to which the Legislature has or has not 

made a preemptive intent clear. In such an analysis, it is not 

inappropriate to take note of what has or has not been 
10

traditionally a matter of local regulation." Wendell, 394 Mass. 

at 525. 

The plaintiffs have identified three statutes that they 

argue are in conflict with the ordinances: G. L. c. 244, the 

Massachusetts foreclosure statute; G. L. c. 21E, the 

Massachusetts Oil and Hazardous Material Release Prevention Act

(OHMRPA); and G. L. c. 111, §§ 127A-127L, the State sanitary 

code. We address each in turn. 

a. Massachusetts foreclosure statute. The plaintiffs 

argue that the foreclosure statute preempts the foreclosure 

ordinance. The First Circuit has asked us also to consider 

whether the foreclosure statute preempts the mediation 

ordinance. As we explain, we conclude that the foreclosure 

statute preempts the mediation ordinance in whole but find no 

preemption of the foreclosure ordinance. 

i. Mediation ordinance. General Laws c. 244 establishes 

three means by which the equity of redemption of a mortgage may 

be foreclosed. They are foreclosure (1) by action, G. L. 

c. 244, §§ 3-10; (2) by entry and possession, G. L. c. 244, 

§§ 1, 2; or (3) by sale under the power of sale in a mortgage, 

G. L. c. 244, §§ 11-17C. General Laws c. 244, § 35A, as amended 

by St. 2010, c. 258, § 7, gives a mortgagor of residential real 

property in the Commonwealth 150 days to cure a payment default 

before foreclosure proceedings may be commenced. A foreclosing 
11

mortgagee may reduce the 150-day period to ninety days by

certifying that it has engaged "in a good faith effort to 

negotiate a commercially reasonable alternative to foreclosure 

. . . involv[ing] at least 1 meeting, either in person or by 

telephone, between [the parties or their representatives,]" and 

that the meeting was not successful. G. L. c. 244, § 35A (b). 

A good faith effort requires the mortgagee to consider the 

mortgagor's current circumstances, an analysis of the net 

present value of a modified mortgage loan compared to the 

"anticipated net recovery following foreclosure[,] and . . . the 

interests of the creditor." G. L. c. 244, § 35A (c). Should 

the good faith effort fail, the mortgagee must provide the 

mortgagor with an affidavit setting forth "the time and place of 

the meeting, parties participating, relief offered to the 

borrower, a summary of the creditor's net present value analysis 

and applicable inputs of the analysis and certification that any 

modification or option offered complies with current [F]ederal 

law or policy." G. L. c. 244, § 35A (f). 

A comparison of the foreclosure statute and the mediation 

ordinance reveals similar attempts to give mortgagees an 

incentive to negotiate with the mortgagors before proceeding to 

foreclose. The city contends that the mediation ordinance 

complements and does not conflict with the foreclosure statute 

because a mortgagee could comply with both laws. We disagree. 
12

The Legislature's decision to utilize the proverbial "carrot" of 

a shorter right-to-cure period trumps the city's choice of the

"stick" of a daily fine. Furthermore, the ordinance by its own 

terms does not allow a mortgagee to proceed with foreclosure 

before obtaining a certificate of good faith mediation, a direct 

impingement on the process of foreclosure. 

Mortgage foreclosure regulation traditionally has been a 

matter of State, and not local, concern. See Walsh, The Finger 

in the Dike: State and Local Laws Combat the Foreclosure Tide, 

44 Suffolk U. L. Rev. 139, 180-187 (2011) (reviewing legal 

challenges to efforts by municipalities to regulate mortgage 

foreclosure process). See BFP v. Resolution Trust Corp., 511 

U.S. 531, 541-542 (1994) (noting traditional State-level 

management of foreclosure). The mediation ordinance alters what 

the Legislature determined, as a matter of policy, to be the 

just medium between the parties involved in the contemplation of 

a mortgage foreclosure. By so doing, the ordinance necessarily 

"frustrate[s] the purpose" of the foreclosure statute. Wendell, 

394 Mass. at 529. 

The Legislature's amendment of the foreclosure statute in 

2012 provides further support for our conclusion that the 

foreclosure process is wholly a matter of State regulation 

absent an expression of a clear intent to allow local 

regulation. General Laws c. 244, § 35B, inserted by St. 2012, 
13

c. 194, § 2, prohibits a mortgagee from proceeding with 

foreclosure by sale if the mortgage loan at issue in the 

foreclosure qualifies as a "certain mortgage loan," as defined 

by G. L. c. 244, § 35B (a). If the loan qualifies, the

mortgagee must conduct an analysis of whether the mortgagor is 

capable of paying a modified mortgage loan, and it must offer

the mortgagee any such identified loan. See G. L. c. 244, 

§ 35B (b). This analysis and offer, if any is forthcoming, 

constitute objective evidence of a good faith effort to prevent 

foreclosure. Id. We think the differing treatment of lenders 

based on the particular circumstances of the mortgage loan in 

question indicates that the Legislature considered and rejected 

other possible means of regulation. Accordingly, we discern a 

legislative intent to occupy the field to the exclusion of other 

options -- including further regulation at the local level.

ii. Foreclosure ordinance. The foreclosure statute does 

not preempt the foreclosure ordinance. As we stated above, 

G. L. c. 244 establishes procedures by which the equity of 

redemption in a mortgage may be foreclosed. The foreclosure 

ordinance does not impact that process. Although a mortgagee's 

duty to maintain and repair arises under the ordinance and other 

liabilities may arise from actions required under the ordinance,

nothing in the ordinance affects the procedures for foreclosing 

the equity of redemption. It is immaterial for purposes of 
14

liability under the ordinance that the ordinance considers the 

foreclosure process initiated at a different moment than the 

statute because the ordinance does not purport to have any legal 

effect on the statutory foreclosure process.

5 We therefore

conclude that the foreclosure ordinance does not conflict with 

the foreclosure statute.

6

b. Massachusetts Oil and Hazardous Material Release 

Prevention Act. As we explain, we determine that the 

foreclosure ordinance is inconsistent with G. L. c. 21E, the 

OHMRPA. The foreclosure ordinance requires an "owner of a 

vacant and/or foreclosing property" to "[r]emove from the 

property, to the satisfaction of the fire commissioner, 

hazardous material as that term is defined in Massachusetts 

General Laws, chapter 21K, as that statute may be amended from 

time to time . . . ." The plaintiffs argue that the foreclosure 

ordinance's definition of "owner" is broader than the definition 

 

5 As discussed infra, where the mortgage authorizes the 

mortgagee to make repairs upon the mortgagor's failure to do so, 

the mortgagee is deemed to have initiated the foreclosure 

process. 

6 The foreclosure ordinance also is not inconsistent with 

G. L. c. 266, § 120, the criminal trespass statute. The 

criminal trespass statute applies to those who enter "without 

right." G. L. c. 266, § 120. A mortgagee may have a right to 

enter property either under the terms of the mortgage or under 

G. L. c. 244, § 9.
15

included in the OHMRPA.7 In the plaintiff's view, this 

overbreadth directly places the foreclosure ordinance squarely 

in conflict with a clearly stated legislative policy. We agree. 

The OHMRPA is a statute "drafted in a comprehensive fashion 

to compel the prompt and efficient cleanup of hazardous material 

and to ensure that costs and damages are borne by the 

appropriate responsible parties. To that end, the [Department 

of Environmental Quality Engineering] has promulgated extensive 

regulations . . . for purposes of implementing, administering, 

and enforcing [the OHMRPA]." Taygeta Corp. v. Varian Assocs., 

436 Mass. 217, 223 (2002). Under the OHMRPA, a secured lender 

will "not be deemed an owner or operator with respect to the 

site securing the loan" if certain conditions are met. G. L. 

c. 21E, § 2 (c). However, this exemption from liability under 

OHMRPA applies only to "releases and threats of release that 

first begin to occur before such secured lender acquires 

ownership or possession of the site . . . ." G. L. c. 21E, 

§ 2 (c) (1). "Nothing in this definition shall relieve a 

secured lender of any liability for a release or threat of 

release that first begins to occur at or from a site . . . 

during the time that such secured lender has ownership or 

 

7 The definition of "owner" in G. L. c. 21K references the 

Massachusetts Oil and Hazardous Material Release Prevention Act 

(OHMRPA). Both c. 21K, which addresses the mitigation of 

hazardous materials, and the OHMRPA utilize the same definition 

of "hazardous material." 
16

possession of such site . . . for any purpose." Id. 

Furthermore, "[n]otwithstanding any other provision of this 

definition, a secured lender shall be deemed an owner or 

operator of an abandoned site . . . if such secured lender . . . 

held ownership or possession of such site . . . immediately 

prior to such abandonment." G. L. c. 21E, § 2 (c) (2). 

The plaintiffs argue that the foreclosure ordinance 

forcibly exposes them to liability under the OHMRPA if, in 

complying with the mandate of the ordinance, they enter a 

property and become mortgagees in possession during or after 

which a release or threat of release of hazardous material 

occurs. The imposition of liability in such circumstances would 

defeat the safe harbor for secured lenders provided by the 

Legislature. We agree. 

The OHMRPA is a "comprehensive" statute. Taygeta Corp., 

436 Mass. at 223. "Legislation which deals with a subject 

comprehensively . . . 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." Bloom, 363 Mass. at 155. Here, 

we can infer that the Legislature has decided that secured 

lenders not in possession (nor previously in possession) of a 

site should not be liable for any hazardous material releases at 

that site. The foreclosure ordinance alters that calculus by 
17

requiring mortgagees not yet in possession to enter the property 

and assume possession. In so doing, a secured lender may become 

liable under the OHMRPA through compliance with the foreclosure 

ordinance. As such, the foreclosure ordinance is inconsistent 

with the OHMRPA. 

The city argues that the very language of the ordinance 

eliminates any inconsistency between it and the OHMRPA because 

the ordinance does not apply to owners "exempt from such actions 

by Massachusetts General Laws." We are unpersuaded by this 

argument. "The existence of legislation on a subject . . . is 

not necessarily a bar to the enactment of local ordinances and 

by-laws exercising powers or functions with respect to the same 

subject[,]" but can be a bar when "the Legislature has . . . 

[impliedly] . . . forbidden the adoption of local ordinances and 

by-laws on that subject." Del Duca v. Town Adm'r of Methuen, 

368 Mass. 1, 11 (1975), quoting Bloom, 363 Mass. at 156. Simply 

put, a municipality has no regulatory power in a field already 

wholly occupied by the State unless explicitly granted such 

power to regulate by the statute itself. The city cannot exempt 

a secured lender from the foreclosure ordinance if it has no 

power to include the lender. See N.J. Singer & J.D. Shambie 

Singer, Sutherland Statutory Construction § 47:11, at 326-327

(7th ed. rev. 2014) ("A true statutory exception exists only to 

exempt something which would otherwise be covered by an act"). 
18

c. State sanitary code. The plaintiffs challenge the 

foreclosure ordinance by claiming it is inconsistent with the 

Sanitary code and the regulations promulgated under it, 105 Code 

Mass. Regs. § 400 (1993), together known as the State sanitary 

code (code). "General Laws c. 111, §§ 127A-127N, reflect a 

comprehensive legislative attempt to effectuate compliance with 

minimum health and safety standards for residential premises." 

Negron v. Gordon, 373 Mass. 199, 202 (1977). A local board of 

health is permitted "to adopt such rules and regulations as, in 

its opinion, may be necessary for the particular locality under 

its jurisdiction; provided, such rules and regulations do not 

conflict with the laws of the commonwealth or the provisions of 

the code." G. L. c. 111, § 127A. Enforcement of the code and 

any local regulations falls to the local board of health or the 

Department of Public Health by service of an order on the owner 

of a property. Id. 105 Code Mass. Regs. § 400.200-400.300

(1993). The local board of health and the Department of Public 

Health, as well as a tenant, also may petition a court to 

enforce the requirements of the code. G. L. c. 111, §§ 127A, 

127C. Among the available remedies are criminal or civil 

injunctive relief, correction of the violation by the board 

itself at the expense of the owner, appointment of a receiver, 

or condemnation and demolition of the building. G. L. c. 111,
19

§§ 127A, 127B, 127I. 105 Code Mass. Regs. § 400.700(B) (1993). 

105 Code Mass. Regs. §§ 410.910, 410.950-410.960 (2007). 

The appointment of a receiver, while a familiar instrument 

of equity, is an extraordinary remedy. Perez v. Boston Hous.

Auth., 379 Mass. 703, 735-736 (1980). General Laws c. 111, 

§ 127I, "set[s] forth circumstances that permit a court to 

appoint a receiver (i.e., when it 'may' do so) as well as those 

circumstances when appointment of a receiver is mandated (i.e.,

when it 'shall' do so)." Boston v. Rochalska, 72 Mass. App. Ct. 

236, 243 (2008). Section 127I "require[s] the appointment of a 

receiver to undertake remedial action when there are ongoing 

sanitary code violations in an occupied building 'and the court 

determines that such appointment is in the best interest of the 

occupants residing in the property,' but mak[es] the appointment 

discretionary when the building is unoccupied or, if occupied, 

when the best interests of occupants do not require 

appointment." Id. at 244. 

The foreclosure ordinance amalgamates two separate 

enforcement procedures envisioned in the State sanitary code 

into a single regulatory mechanism: the use of the surety bond 

and direct entry by an enforcement authority. Under the State 

sanitary code, an enforcement authority initially can only issue 

an order to the owner (as defined by 105 Code Mass. Regs. 

§ 410.020 [2007]) or petition a court for enforcement. Only 
20

after "a failure to comply with an order . . . results in a 

condition which endangers or materially impairs the health or 

well-being of the occupant or the public" may an enforcement 

authority cause "such proper cleaning or repair and charge the 

responsible person or persons as hereinbefore provided with any 

and all expenses incurred." 105 Code Mass. Regs. § 410.960(A)

(2007). The code requires only receivers to post a bond, not 

owners subject to the code. G. L. c. 111, § 127I. Even then, 

receivers are required to post a bond only after appointment by 

a court of competent jurisdiction. Id. 

The foreclosure ordinance requires an owner, subject only 

to an administrative order and fine followed by charged expenses 

under the code, to post a bond to ensure compliance with the 

ordinance. The building commissioner may draw on the bond after 

failure of an owner to pay within seven days the expenses of a 

direct entry by the building commissioner or his agents. The 

code envisions that expenses for such a direct entry can be 

recouped by an action at law or by placing a lien on the 

property. 105 Code Mass. Regs. § 410.950(D) (2007). The 

foreclosure ordinance places a heavier burden on an owner than 

does the code to ensure enforcement of essentially the same 

mandates by requiring an owner to post a bond where the code 

would require none. "Given the comprehensiveness of the [code] 

and the remedies provided therein," it is inconsistent with the 
21

code for a municipality to require a surety bond of an owner in 

situations where the code would require none. See Boston Gas 

Co. v. Newton, 425 Mass. 697, 704-705 (1997). In addition, the 

code's provision for the use of a surety bond limits the city's 

power to require such a bond in any other context of code 

enforcement. See 105 Code Mass. Regs. § 400.015 (1993) ("Nor 

should the existence of the State Sanitary Code limit or 

otherwise affect the power of any health authority with respect 

to any matter for which the State Sanitary Code makes no 

provision"). The city, by the terms of the code, may require 

only a surety bond in the manner the code allows. The 

foreclosure ordinance requires a surety bond in circumstances 

different from those of the code. Thus the foreclosure 

ordinance conflicts with the code.8 

4. Lawful fee. The plaintiffs challenge the foreclosure 

ordinance by characterizing it as an unlawful tax instead of a 

lawful fee. The city imposes a charge on foreclosing mortgagees 

 

8 Although we determine that State law preempts the 

foreclosure ordinance, the effect of this preemption vis-à-vis a 

general severability clause is not before us. "Neither a trial 

judge nor this court can consider such alleged ordinances unless 

they are put in evidence." Fournier v. Central Taxi Cab, Inc.,

331 Mass. 248, 249 (1954), and cases cited. Nor are local 

ordinances "an appropriate subject of judicial notice." 

Lawrence v. Falzarano, 380 Mass. 18, 25 n.10 (1980). See Mass. 

G. Evid. § 202(c) (2013). We note that the foreclosure 

ordinance, unlike the mediation ordinance, does not have a 

severability provision specific to itself.
22

to register the property with the city.

9 "A municipality does 

not have the power to levy, assess, or collect a tax unless the 

power to do so in a particular instance is granted by the 

Legislature." Silva v. Attleboro, 454 Mass. 165, 168 (2009), 

quoting Commonwealth v. Caldwell, 25 Mass. App. Ct. 91, 92 

(1987). The plaintiffs bear the burden of demonstrating the 

invalidity of the exaction. Id. The operation of the exaction, 

rather than the specific language used to describe it, 

ultimately demonstrates its nature. Id. Fees share certain 

common characteristics that distinguish them from taxes and 

establish the lens through which to determine their nature. 

Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender 

Registry Bd., 459 Mass. 603, 610 (2011) (Doe No. 10800). 

Utilizing these characteristics, we arrive at the conclusion 

that the monetary exaction at issue here is a lawful fee, and 

not a tax. 

a. Particularized benefit. Fees "are charged in exchange 

for a particular governmental service which benefits the party 

paying the fee in a manner 'not shared by other members of 

society.'" Emerson College v. Boston, 391 Mass. 415, 424 

(1984), quoting National Cable Television Ass'n v. United 

States, 415 U.S. 336, 341 (1974). In Doe No. 10800, we examined 

 

9 Because we determine that the city's requirement that a 

registrant post a bond is preempted by State law, we analyze 

this question as if the city charged a fee directly instead of 

retaining part of the bond. 
23

whether an exaction that the Legislature authorized from sex 

offenders who were required to register with a supervisory board 

constituted a regulatory fee or tax. 459 Mass. at 605, 610-615. 

There, we further affirmed our reasoning in Silva, 454 Mass. at

170, that "the particularized benefit provided in exchange for 

the [regulatory fee] is the existence of the regulatory scheme 

whose costs the fee serves to defray." Such fees "serve 

regulatory purposes either 'directly by, for example, 

deliberately discouraging particular conduct by making it more 

expensive,' or indirectly by defraying an agency's regulationrelated expenses." Id. at 171, quoting Nuclear Metals, Inc. v. 

Low-Level Waste Mgt. Bd., 421 Mass. 196, 201-202 (1995). 

"In the context of regulatory fees, we construe the term 

'benefit' broadly to encompass the provision of particular 

governmental services to a group of individuals whose actions 

have necessitated the regulatory scheme in the first instance 

and who should shoulder the burden of paying for such services. 

That this may not be viewed as a 'benefit' to [one subject to 

the scheme] in the traditional sense of the word does not 

detract from the fact that a governmental entity has provided a 

particularized 'service' to individuals who require it." Doe

No. 10800, 459 Mass. at 611. The city has stated its belief 

that properties in foreclosure are more likely to become 

nuisances than other properties and that a downward spiral of 
24

urban blight can occur as nuisance properties in foreclosure 

affect the values of other properties around it, thereby 

increasing the likelihood of foreclosure. The foreclosure 

ordinance attempts to regulate this phenomenon by addressing the 

period of time between when a mortgagor has stopped tending to 

the property (due either to the futility of the exercise in the 

face of foreclosure and unavoidable eviction or to the fact that 

the property is already vacant with no party responsible for its 

care) and when the mortgagee or new occupant comes into 

possession. While the act of foreclosing by mortgagees should 

not be equated with the acts of those subject to the regulatory 

scheme in Doe No. 10800, foreclosure is nevertheless the 

operation that triggers the conditions giving rise to the 

perceived necessity for the regulatory scheme. That this 

regulatory scheme is not viewed as a benefit by the plaintiffs 

does not detract from the fact that the city provides a 

particularized service to the plaintiffs in the form of 

maintaining property values of their loan collateral through 

enforcement of the foreclosure ordinance after foreclosure has 

commenced. See Nuclear Metals, Inc., 421 Mass. at 205 ("It is 

appropriate that the entities which generate low-level 

radioactive waste (and not the taxpayers of the Commonwealth) 

should shoulder costs associated with protecting the general 

public from the hazards posed by the waste"). 
25

b. Costs. Fees, unlike taxes, "are collected not to raise 

revenues but to compensate the governmental entity providing the 

services for its expenses." Emerson College, 391 Mass. at 425.

Here, the fee is paid into "an account for expenses incurred in 

inspecting, securing, and marking said building and other such 

buildings that are not in compliance with this Section." See 

id. at 427 (stating deposit of exaction into general fund 

nondecisively weighs in favor of tax, not fee). "The critical 

question is whether the fees are reasonably designed to 

compensate an entity for its anticipated regulatory expenses." 

Doe No. 10800, 459 Mass. at 612. In reviewing this question, 

"reasonable latitude must be given to the agency in fixing 

charges to cover its anticipated expenses in connection with the 

services to be rendered." Southview Coop. Hous. Corp. v. Rent 

Control Bd. of Cambridge, 396 Mass. 395, 403 (1985). Such 

charges should "not be scrutinized too curiously even if some 

incidental revenue were obtained." Id., quoting Opinion of the 

Justices, 250 Mass. 591, 602 (1924). "Relevant expenses include 

both the direct and the indirect or incidental costs associated 

with the particular government service." Doe No. 10800, 459 

Mass. at 613. 

The plaintiffs argue that the funds that do not apply 

directly to the registered compliant properties are utilized to 

secure other, noncompliant properties and are never recovered by 
26

the original payor. These excess monies, therefore, indicate 

that the exaction is excessive to the costs of the benefit.10 

This argument passes over the fact that the foreclosure 

ordinance envisions that the expenditures of the city in 

entering and securing a noncompliant property will indeed be 

initially financed by a portion of the administrative fee from 

the compliant properties paid into an account to fund the city's 

actions in securing the noncompliant properties but that

ultimately the penalties that other properties will incur 

through noncompliance will cover those expenditures of the city. 

This initial financing of a portion of the regulatory scheme 

beyond the simple processing and registration of a compliant 

property is "an indirect or incidental cost[] associated" with 

the foreclosure ordinance. Doe No. 10800, 459 Mass. at 613. 

c. Voluntariness. The parties agree that the exaction at 

issue in the foreclosure ordinance is involuntarily paid. We 

have "consistently given less weight to the voluntariness 

factor" in the context of regulatory fees. Silva, 454 Mass. at 

172. The purpose of the foreclosure ordinance is "to promote 

 

10 The foreclosure ordinance does not specify the amount of 

the administrative fee. Therefore, although we discuss the role 

of the exaction relative to costs and ultimately determine that 

the exaction is a fee, we can make no further determination 

whether the exaction unlawfully raises revenue or, 

alternatively, compensates the city on the record before us. We 

note that the mere fact that a fee creates some revenue does not 

transform the fee into a tax. See Opinion of the Justices, 250 

Mass. 591, 602 (1924). 
27

the health, safety and welfare of the public, to protect and 

preserve the quiet enjoyment of occupants, abutters and 

neighborhoods, and to minimize hazards to public safety 

personnel inspecting or entering such properties." Exactions 

founded upon the police power to regulate particular activities 

are regulatory fees. See id. at 168. Accordingly, in this 

context, the issue of voluntariness "is of no relevance in 

determining whether that charge is a fee or a tax." Id. at 172.

In conclusion, for the aforementioned reasons, we determine 

that the city's exaction from those subject to the foreclosure 

ordinance would be a lawful fee, rather than a tax.11 

Accordingly, we answer the second certified question in the 

negative. 

We recognize that the city of Springfield has attempted to 

address the serious problem of urban blight within its borders 

through these ordinances. Although we conclude that the city 

may not achieve its goal by ordinance as it has here attempted, 

a solution may be provided through the Legislature. 

The Reporter of Decisions is to furnish attested copies of 

this opinion to the clerk of this court. The clerk in turn will 

transmit one copy, under the seal of this court, to the clerk of 

 

11 The plaintiffs also argue that the city lacks the 

statutory authorization to impose this exaction. The plaintiffs 

point to nothing in the record to support this contention. We 

assume, without deciding, that the city does have this authority 

pursuant to G. L. c. 40, § 22F, and that the city has duly 

adopted this provision. 
28

the United States Court of Appeals for the First Circuit, as the 

answers to the questions certified, and will also transmit a 

copy to each party. 

So ordered.