The state Attorney General and the town of Milton have emerged partially victorious in a ruling from the state’s highest court.
Towns and cities that were required to create zoning for multifamily housing near public transportation will still be subject to the law. But the state must redo the guidelines that make the law enforceable.
The Massachusetts Supreme Judicial Court released its ruling Wednesday that said the MBTA Communities Act is constitutional and Attorney General Andrea Campbell had the authority to enforce the 2021 law.
But the state’s highest court sided with the town’s argument that the law’s guidelines, which included deadlines by which communities had to pass zoning rules or face repercussions, did not go through the proper public process and therefore are rendered ineffective. The guidelines must now go through a specific public process before they can be enforced, the court ruled.
The case will be sent back to county court for a declaratory judgement.
What do Gov. Maura Healey and AG Andrea Cambell say
Gov. Maura Healey and Attorney General Andrea Campbell celebrated the ruling as a win.
Healey said the decision was a “major victory for our efforts to increase housing across the state and lower costs,” noting that 116 communities had passed compliant zoning rules.
“We stand ready to work with Milton and all communities to help them understand how we will all benefit from the MBTA Communities law and find ways for them to meet their unique housing needs,” she said.
The Executive Office of Housing and Livable Communities, which was in charge of developing guidelines for the law, will file emergency regulations by the end of the week, which will be “effective immediately upon filing,” Healey noted.
Campbell said the court’s ruling was 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.”
“The state’s highest court has made clear that communities subject to the law must allow for additional, responsible development − and that the law is mandatory, not voluntary,” she said..
The state sued Milton after voters rejected proposed zoning rules intended to jumpstart the creation of housing near public transportation as outlined by the MTBA Communities Act. The case ended up with the Massachusetts Supreme Judicial Court, contemplating the state attorney general’s ability to reprimand municipalities that don’t comply as well as whether the guidelines went through the proper channels.
The decision will have ramifications for the town of Milton and the handful of other municipalities on the South Shore that also rejected proposed zoning rules as outlined in the MBTA Communities Act.
What does the SJC ruling say about zoning for MBTA housing?
The Supreme Judicial Court said that the Executive Office of Housing and Livable Communities drafted the guidelines for how municipalities can comply with the law, sought feedback from impacted communities and consulted with state agencies. But the office should have filed certain public notices with the Secretary of the Commonwealth as required by the Administrative Procedure Act, the court said, determining that the “guidelines” fall within the definition of “regulations.”
The act was created to set a standard that all agencies must abide by to give fair notice to and opportunity for input by all parties involved.
The court did not agree with Milton’s assertion that the law was unconstitutional nor the attorney general could not enforce the law.
“This court has long recognized that the Attorney General has broad powers to enforce the laws of the Commonwealth,” the ruling said, adding that “the Attorney General’s enforcement power is not dependent upon whether a particular statute happens to reference it.”
What is the MBTA Communities Act?
In an effort to address housing stock and affordability, the 2021 law requires 177 towns and cities designated as “MBTA communities” to create at least one high-density zoning overlay district near public transportation where a designated number of housing units would be allowed to be built. The law does not require that these units are constructed, but rather allows this type of use in addition to the existing zoning.
The law outlined specific grants for which noncompliant towns would not be eligible.
More: What South Shore towns have supported, rejected MBTA zoning rules?
The municipalities immediately surrounding Boston with subway or light rail stations were required to pass zoning rules by the end of 2023. This included the town of Milton, as it is served by the Mattapan Trolley. The town passed rules at its December town meeting, but voters called for a special election and overturned the decision the following February.
After this, the town lost a state seawall grant and was sued by Attorney General Andrea Campbell, who sought declaratory and injunctive relief.
What was said during oral arguments in front of SJC
During oral arguments in front of the Supreme Judicial Court on Oct. 7, Assistant Attorney General Eric Haskell argued that Campbell had the authority as the state’s chief law enforcement officer to do just that.
Attorney Kevin Martin, who represented Milton, said that lawmakers clearly spelled out the four grants that noncompliant towns could not access. If the legislature wanted to provide for greater penalties, it could have, Martin said. The last time Milton received one of those grants was in 2012.
The town also argued that guidelines that the Executive Office of Housing and Livable Communities were charged with creating to denote whether a community is in compliance were actually regulations, and are therefore null because they did not go through the proper process.
While the majority of South Shore municipalities impacted by this law have passed zoning to comply, a half dozen have not. They include Hanson, Halifax, Duxbury, Hanover and Marshfield, the latter rejecting proposed rules twice in 2024. One town, Norwell, had initially rejected rules but changed course at a special town meeting in December.
Hannah Morse covers growth and development for The Patriot Ledger. Contact her at hmorse@patriotledger.com.
This article originally appeared on The Patriot Ledger: Milton MA MBTA housing lawsuit: SJC rules zoning law is constitutional