The controversial MBTA Communities Act is a constitutional law that the attorney general can enforce with legal action, but the measure is “ineffective” until the Healey administration takes another pass at crafting regulations, the state’s highest court ruled Wednesday.
In a 23-page decision with implications for state efforts to influence housing affordability by facilitating more housing production, the Supreme Judicial Court ruled the 2021 zoning reform law does not run afoul of the state Constitution and that Attorney General Andrea Campbell is allowed to sue cities and towns that fail to comply.
However, the court found that the Executive Office of Housing and Livable Communities did not follow state law when promulgating relevant guidelines, rendering them “presently unenforceable.”
Gov. Maura Healey and her deputies praised the decision upholding the law, and said they would move to craft new emergency regulations by the end of the week to plug the gap opened up by the ruling.
Campbell, who sought to enforce the law against Milton and also defended its constitutionality in court, called the decision “a resounding victory for the Commonwealth and a major step forward in our work to address the unacceptably high cost of housing for our residents.”
“It’s crystal clear based on this decision: not only is the MBTA Communities Law mandatory and we have the authority to enforce it, but communities that are within the purview of the MBTA Communities Law must come into compliance, and they must work with their local legislative body on zoning that is compliant,” Campbell told reporters.
Kevin Martin, an attorney who represented Milton in the legal proceedings, said town officials are “very pleased the Court recognized the critical importance” of mandatory regulatory steps.
“In that respect today’s decision was a victory not only for Milton but also the rule of law,” Martin said in a statement. “We hope that in issuing new Guidelines, the Executive Office takes account of the many serious substantive concerns raised not only by Milton, but also by other affected communities.”
The ruling sets a major precedent affecting close to half of the state’s cities and towns, and it drew support from organizations representing tenants, real estate industry leaders and more. Groups that issued statements of praise included Associated Industries of Massachusetts, the Metropolitan Area Planning Council, the Greater Boston Real Estate Board and Homes for All Massachusetts.
More than two dozen cities and towns that have hesitated to enact the required zoning changes or outright resisted the mandate will now need to come into compliance, but the timeline is unclear.
Healey said the forthcoming emergency regulations “will be effective immediately upon filing,” but neither the governor nor other administration officials would say Wednesday how that will impact the original compliance deadlines that in many cases have already passed.
Speaking with reporters after an unrelated event, Healey did not directly answer when asked what the new compliance dates would be.
“We’re going to be out soon with more on that,” she said.
Campbell said she is confident the new regulations will land “sooner [rather] than later.”
“This may require additional time, but it does not in any way stand in the way of a municipality working to come into compliance,” she said.
The MBTA Communities Act requires 177 municipalities that host or are adjacent to MBTA service to zone for multifamily housing by right in at least one district.
Cities and towns are classified in one of four categories, and there are different compliance deadlines: host to rapid transit service (deadline of Dec. 31, 2023), host to commuter rail service (deadline of Dec. 31, 2024), adjacent community (deadline of Dec. 31, 2024) and adjacent small town (deadline of Dec. 31, 2025).
Milton Town Meeting in December 2023 approved a zoning plan that would have complied with the law and HLC’s guidelines. Some opponents pursued a townwide referendum vote, however, and about 54 percent of voters in February 2024 rejected the zoning proposal.
State officials said Milton’s resistance made it ineligible for some grant funding, and Campbell also filed a lawsuit seeking to force the town into compliance. The town contended in response that the attorney general could not seek additional action, and that the only allowable penalty was the loss of certain grant eligibility.
Justices on the state’s high court disagreed with the town on that front, ruling that the law is constitutional and that the AG can seek additional injunctive relief.
“As the purpose of [the MBTA Communities Act] is to increase housing stock, the town’s proposed reading of the act would thwart the Legislature’s purpose by converting a legislative mandate into a matter of fiscal choice,” SJC Chief Justice Kimberly Budd wrote in the decision.
The Legislature approved the law in 2021, adding it to a sweeping economic development package at the last minute with little discussion ahead of time. Supporters view it as a way to spur more housing production, which for decades has lagged behind demand in Massachusetts, affecting inventory and driving up prices.
The Executive Office of Housing and Livable Communities — previously known as the Executive Office of Housing and Economic Development — began its work to produce guidelines under former Gov. Charlie Baker, then issued the final guidelines in August 2023 under Healey.
A state law known as the Administrative Procedure Act requires state agencies crafting regulations to follow certain steps designed to maximize public input and comprehension.
The mandatory checklist includes submission of a proposed regulation with the secretary of state’s office and a small business statement, two steps that “HLC has admitted that it failed to take,” Budd wrote in the court’s decision.
Campbell argued that the APA should not apply because the MBTA Communities Act called for “guidelines” and not “regulations,” and that even if it did apply, the state’s missed steps “should be considered harmless error.”
But justices ruled that the APA requires “strict compliance” by state agencies.
“Because HLC failed to comply with the APA, HLC’s guidelines are legally ineffective and must be repromulgated in accordance with [state law], before they may be enforced,” Budd wrote.
Most cities and towns subject to the MBTA Communities Act have already complied with the mandatory zoning changes. Opponents view the law as unnecessarily heavy-handed, voicing fears that allowing more multifamily housing by right will impact neighborhood character.
Twenty-eight cities and towns are deemed noncompliant, according to the latest state tally, because they failed to submit required zoning plans by the deadlines outlined in HLC’s original guidelines. They will likely get a bit more time to come into compliance as the department works to craft new emergency regulations.
Three other communities — Gloucester, Needham and Shrewsbury — are in an unusual middle ground. All three towns approved zoning reforms that would comply with the law, but in each case, opponents are pursuing referendum votes to scrap those plans, leaving the municipalities technically noncompliant.
The SJC’s decision could recolor the campaigns ahead of those three votes, starting with Needham’s referendum on Jan. 14.
Some in Milton argue the town should not be designated a “rapid transit community” — carrying with it the strictest requirements and earliest compliance deadline — because its T service primarily consists of the light-rail Mattapan trolley.
Sen. William Driscoll, who lives in Milton, echoed that point Wednesday, calling the new guidelines the state will need to craft “an opportunity to right-size what’s being asked of communities.”
“Milton does not have subway service, so it’s my hope that in the future iteration of the guidelines, Milton is classified fairly and appropriately. I hope that as that process begins, they are open to making those changes,” he told the News Service.
“The root cause of this in terms of Milton rejecting the plan that was before them was that we were being asked to zone for the highest classification under the guidelines,” he added. “We should be in a classification that reflects that we have commuter rail service. If we were in that category, last year, I don’t think we would have seen the same outcome.”
Driscoll, who served four terms in the House before joining the Senate last week, said he wants municipalities to gain “a chance at recourse if they disagree” with the state’s regulations or how communities are classified.
“This should not have to go to the courts in terms of the first line of recalibration,” he said. “There is currently no way to appeal within the process, which we had been doing all along, being asked to be reclassified.”
Campbell said she does not foresee “renewing any legal action” against Milton as necessary, and stressed that her office is prepared to offer its aid and expertise to communities working on rezoning plans.
“We did not sue the town of Milton lightly. Every step of the way, we have been quite reasonable in offering up assistance, technical assistance, answering questions, with the hopes they would come into compliance,” she said. “Now, with this new decision by the SJC, we will go back to every municipality to continue to offer technical assistance and to continue to help them come into compliance and to work in collaboration. Because at the end of the day, this housing crisis will take all of us working in partnership to address.”
House Speaker Ron Mariano said the Healey administration now has “a lot of work to do” as it sets out to repromulgate regulations.
“Obviously there’s concerns when you’re passing laws and you have no idea how you’re going to make them work, and you’re told by the administration, the legal administration, that this won’t work,” he said.
[Sam Drysdale, Sam Doran and Colin A. Young contributed reporting.]
