Several towns want a temporary exemption from the state’s controversial zoning law that seeks to build more affordable housing.
Ahead of the state’s July deadline, representatives for five towns asked a Plymouth Superior Court judge Wednesday for more time to resolve their cases. The suit, brought forth by towns including Hanson, Marshfield, Middleton, Holden and Wrentham, says the state is unlawfully forcing them to build more housing without providing financial support for the associated costs.
The MBTA Communities Act requires 177 cities and towns — those with MBTA transit stops nearby — to rezone for more multi-family homes.
The communities contend the state is mandating them to boost affordable housing but not providing specific funding for future increased demand on town services. If these towns don’t comply with zoning changes, the state law spells out that the state can withhold funding that supports critical local services — and state Attorney General Andrea Campbell could sue them into compliance.
Attorney Jay Talerman, who represents Hanson, Wrentham, Middleton and Holden, told the court: “All of our communities need more housing. That’s not what this is all about. This is about the ability to manage that housing.
“If the educational services are inadequate, or the fire department services are inadequate, or the police services are inadequate, I can still build that housing in town and you have to figure it out,” he said.
Attorney Robert Galvin, who represents Marshfield, contends the housing state mandate disenfranchises voters by forcing them to say yes to the new projects or automatically lose certain state funding as a penalty. He argued that town voters are granted the right to amend or repeal zoning laws for the protection of public health, safety and welfare.
“How could they be compelled to vote to adopt a zoning law ordered by the commonwealth without being disenfranchised of their right to vote?” Galvin said.
Assistant Attorney General Eric Haskell, representing the state, argued that there’s only one obligation mandated by the new law.
“Zone. That’s it,” he told the court. “It doesn’t have a construction mandate. It’s not a housing mandate. There is language in the regulation that says this is not a construction or housing mandate.”
“That’s the purpose of the law, isn’t, it?” the judge interjected.
“That is what the Legislature is getting at, but it is not mandating it — and we all know, depending on how the municipality chooses to implement this law, it may affect how much housing actually gets built,” Haskell replied.
But Talerman argues the state is tailoring its argument for the sake of defending itself against the lawsuit.
“Housing, housing, housing — build this housing,” Talerman said in his rebuttal. “Now they are saying for the pure purposes of winning a legal argument in court. ‘Oh, you don’t have to build the housing. You just have to throw some stuff on a piece of paper.’ That is not why we are here.”
Each town filed separate lawsuits after State Auditor Diana DiZoglio’s office determined that the MBTA Communities Act is an “unfunded mandate” in February. According to the auditor, when the state mandates that local governments offer a new program, it is usually required to provide additional funding for that service.
But earlier this year, the Massachusetts Supreme Judicial Court upheld the law , saying the Massachusetts Attorney General can sue towns for not complying once the deadlines hit.
Attorney General Andrea Campbell disagreed with the auditor’s finding and said she plans to enforce the law in court, including filing complaints against towns that do not comply.
Judge Mark Gildea took the case under advertisement. He did not say when he would issue a ruling.
