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Our members are the local governments of Massachusetts and their elected and appointed leadership.
Massachusetts Supreme Judicial Court
John Adams Courthouse
1 Pemberton Square, Suite 2500
Boston, MA 02108
Dear Honorable Justices of the Massachusetts Supreme Judicial Court,
The Massachusetts Municipal Association (MMA) respectfully submits this letter pursuant to Attorney General v. Town of Milton and Joe Atchue, SJC-13580, to share our perspective and provide relevant information for consideration of the court in this matter.
The MMA represents the 351 cities and towns in the Commonwealth and aims to improve the effectiveness of local government across the state by bringing municipal officials together to develop and advocate for unified policies. 177 member municipalities have been named “MBTA Communities,” and M.G.L. Chapter 40A, Section 3A (Section 3A) includes a zoning mandate for at least one zoning district of reasonable size in which multi-family housing is permitted as of right in those municipalities. Since passage, communities have been doing the hard work to figure out how this new zoning mandate fits within the conditions in their city or town. The MMA has been working over the past several years to partner with the Commonwealth and other stakeholders to ensure that municipalities have the flexibility and technical assistance required to facilitate compliance.
We are concerned about the ramifications this case could have on local government, especially for a subject understood to be directly answered by both the legislative intent of Section 3A and the statutory language itself. We do not doubt that Section 3A is a zoning mandate on 177 communities, but we respectfully remind the Court that the remedy for non-compliance is explicitly stated and included. This specific remedy for non-compliance is clearly included in Section 3A(b) and exclusive. Section 3A(b) reads:
(b) An MBTA community that fails to comply with this section shall not be eligible for funds from: (i) the Housing Choice Initiative as described by the governor in a message to the general court dated December 11, 2017; (ii) the Local Capital Projects Fund established in section 2EEEE of chapter 29; (iii) the MassWorks infrastructure program established in section 63 of chapter 23A, or (iv) the HousingWorks infrastructure program established in section 27 of chapter 23B.
When a statute specifies a particular remedy for non-compliance, that remedy has been held to be exclusive. Here, the particular remedy to non-compliance is specified, and four specific funding sources are intentionally included in the statute as a clear expression by the Massachusetts General Court. In fact, the statute was recently amended by Chapter 7, Section 152 of the Acts of 2023 to include the fourth funding stream: the newly-codified HousingWorks infrastructure program. The General Court was clear about the penalties for non-compliance with 3A. Had they contemplated additional consequences or enforcement authority, they surely would have included it in the statute during its passage, or through its subsequent amendment. Since the remedy is explicitly stated in the statute, the pursuit of further penalties should not be recognized.
We look forward to working with municipalities and the Commonwealth through implementation of this law in the coming years. We greatly appreciate the Court’s attention to this important issue for cities and towns and the Commonwealth.
Sincerely,
Adam Chapdelaine
MMA Executive Director & CEO