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In response to a lawsuit brought last fall by the town of Milton, the Massachusetts Supreme Judicial Court today upheld a 2021 state law intended to promote new housing in MBTA Communities, as well as the power of the Attorney General’s Office to enforce the law, but threw out detailed guidelines developed by the state agency responsible for specifying the terms of compliance.
The SJC found that the Executive Office of Housing and Livable Communities failed to comply with the state’s Administrative Procedures Act, saying the agency did not file required notices and impact statements. The court said the guidelines — essentially regulations — are “legally ineffective” and must be “repromulgated.”
In a statement issued just after the ruling was released, Gov. Maura Healey said her administration would file new emergency regulations governing the MBTA Communities law by the end of this week, and those rules would be “effective immediately upon filing.” The Executive Office of Housing and Livable Communities, however, will still need to submit non-emergency regulations in accordance with the rulemaking process prescribed by the Administrative Procedures Act.
In December of 2023, a special town meeting in Milton changed the town’s zoning bylaws to be in compliance with the MBTA Communities Law, but two months later a citizen petition was passed by the voters to repeal the zoning changes, bringing the town out of compliance.
Among its arguments, the town of Milton said that the penalties for noncompliance with the law were explicit in the law itself — being excluded from consideration for four specified grant programs. But the SJC concluded that the ineligibility for grant funding does not preclude the Attorney General from enforcing the law.
“As the purpose of [Section] 3A is to increase housing stock,” the court wrote, “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.”
The SJC also concluded that the EOHLC’s “guidelines” for compliance with the MBTA Communities law do indeed fall “within the ambit of regulations.”
The MBTA Communities Act, or Section 3A of the state’s Zoning Act, requires municipalities with adjacent MBTA service to create at least one zoning district “of reasonable size” where multi-family housing is allowed “as of right.” There are 177 communities listed as MBTA Communities, several of which are currently out of compliance with the recently voided guidelines.
• Download the full SJC decision in Attorney General vs. Town of Milton
Written by John Ouellette, Senior Executive and Director of Communications and Ali DiMatteo, MMA Legislative Analyst