Massachusetts’ Supreme Judicial Court ruled that the state’s attorney general has the power to enforce the MBTA Communities Law, which requires communities near MBTA services to zone for more multifamily housing, but it also ruled that existing guidelines aren’t enforceable.
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The state's highest court on Wednesday upheld the controversial MBTA Communities Act as a constitutional law that the attorney general has the power to enforce with legal action, but also ruled that existing guidelines are "unenforceable" because the Healey administration failed to roll them out properly.
The lawsuit was originally brought by the attorney general after voters in Milton, one of the communities subject to the regulations, rejected a voting plan that would have complied with a state law requiring more multi-family homes built near MBTA stations.
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In a decision with massive implications for the state's effort to build more housing, the Supreme Judicial Court ruled that the zoning reform law does not run afoul of the state Constitution and that Attorney General Andrea Campbell is allowed to sue cities and towns that fail to comply.
However, a third prong to the court's decision found that the Executive Office of Housing and Livable Communities did not follow the Administrative Procedure Act when promulgating guidelines governing implementation of the law by failing to file required notices and impact statements.
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"The most important part is the statute is in fact constitutional, and that means cities and towns will have to change some of their zoning to comply," explained legal analyst Michael Coyne.
The APA requires state agencies engaged in rulemaking to file notice of a proposed regulation with the secretary of state's office and a small business impact statement. HLC "admitted that it failed to take either of these necessary steps," the SJC wrote.
"Because HLC failed to comply with the APA, HLC's guidelines are legally ineffective and must be repromulgated in accordance with [state law], before they may be enforced," SJC Chief Justice Kimberly Budd wrote in the decision.
The MBTA Communities Act requires cities and towns with or adjacent to MBTA service to zone for multifamily housing by right in at least one district. Many communities have already complied with the new mandates, but some including Milton have resisted, with opponents arguing the changes would shift neighborhood character.
Communities have been closely watching the SJC proceedings, expecting the decision about Milton's compliance and the state's response would impact their own rezoning efforts.
"At the end of the day, if one looks at this, there is a rationale basis for why the court, why the legislature would have wanted to provide for multi-family housing relatively close by transportation," Coyne said.
More on the MBTA Communities Act
Both sides considered the decision a win.
“This decision is a major victory for our efforts to increase housing across the state and lower costs," Gov. Maura Healey wrote in a media statement. "The MBTA Communities Law is already a success story. 116 communities have said yes to housing and 3,000 new homes are in the pipeline – and those numbers are going to continue to grow. 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. Together, we are going to make housing more affordable for all of the people who keep our communities strong – our teachers, nurses, first responders, small business owners, seniors and families.”
She added that the HLC is prepared to file emergency regulations by the end of the week, consistent with the court's ruling.
The town of Milton also felt the ruling was a victory for their argument.
"We’re pleased the court recognized that the state failed to follow the law when it promulgated the Guidelines, and so told the state to go back to the drawing board. In that respect today’s decision was a victory not only for Milton but also the rule of law. The court also left for another day Milton’s arguments that the Mattapan Trolley is not a subway under the statute, and that the Guidelines exceed the limited authority granted the Executive office by the statute," wrote attorney Kevin Martin, who represented the town in front of the SJC.
Attorney General Andrea Joy Campbell also issued a statement.
"Today’s decision is 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. I applaud the residents, municipal officials, and communities that have already adopted zoning to help relieve our statewide housing crisis. Following the court’s ruling, we will work with the Executive Office of Housing and Livable Communities to assist with the issuance of regulations.”
