EOHLC issues emergency regulations for MBTA Communities law

In the wake of a Supreme Judicial Court decision that upheld the MBTA Communities Act but threw out the compliance guidelines, the Executive Office of Housing and Livable Communities yesterday issued emergency regulations to set terms for ongoing implementation of the law.

The regulations, effective immediately and for 90 days, do not substantively change the law’s zoning requirements and do not affect any previous determinations of compliance that have been issued by Housing and Livable Communities, but they do provide additional time for affected communities that haven’t met prior deadlines to come into compliance with the law.

According to a statement, Housing and Livable Communities intends to adopt permanent regulations following a public comment period.

Ruling on a lawsuit brought last fall against the town of Milton, the SJC last week upheld the 2021 state law, as well as the power of the Attorney General’s Office to enforce the law, but threw out the detailed guidelines that specify the terms of compliance.

The SJC found that the state agency that developed the rules failed to comply with the state’s Administrative Procedures Act – specifically, that it did not file required notices and impact statements. The court said the rules are “legally ineffective” and must be “repromulgated.”

Milton case
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.

The town argued 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. The EOHLC reports that 116 of the communities have already made zoning changes to be in compliance with the law.