TWENTY GROUPS, including three former attorneys general and the towns of Middleborough and Hamilton, have offered their advice to the Supreme Judicial Court on whether Attorney General Andrea Campbell has the legal authority to compel Milton to comply with the MBTA Communities Act.
Campbell argues she has the legal responsibility and authority to enforce the law, which requires communities served by the MBTA to establish at least one rezoned area where developers can build multi-family housing as of right. Milton, however, insists Campbell lacks the authority to compel compliance with the law because the law says the penalty for noncompliance is the loss of certain state grant funds.
With the full SJC scheduled to hold a hearing on the high-stakes case on October 7, the court asked interested parties to submit so-called amicus briefs. Twenty briefs were submitted, 12 siding with the attorney general and eight siding with Milton one way or another. The pro-attorney general faction included business and labor groups and a wide assortment of housing activists. The pro-Milton group included other towns, Milton residents, and businesses located primarily in Milton.
The key issue in the case is whether Campbell can compel compliance when the MBTA Communities Act statute itself is silent on her enforcement power and specifically mentions the loss of grant funds as the penalty for noncompliance.
Three former attorneys general – Francis X. Bellotti (1975 to 1987), James Shannon (1987 to 1991), and Scott Harshbarger (1991 to 1999) – said state law for centuries has recognized that the AG has the power to enforce state laws that pertain to the public interest. They said the state’s shortage of housing, which the MBTA Communities Act seeks to address, is exactly the type of public interest the attorney general must defend.
“Thus, it simply is incorrect to say (as has been suggested by certain parties in this case) that, where a statute is silent on the issue or provides for some other consequence of noncompliance with a statute, the attorney general lacks standing and power to file a civil action seeking an injunction or declaration compelling a defendant to comply with a statutory mandate,” the three attorneys general say in their amicus brief. “The law is, and has been for centuries, the opposite. In the absence of some express limitation clearly imposed by a constitutional amendment or by the general court in an exercise of its due authority, the attorney general retains all his or her authority to seek injunctive and declaratory relief compelling a defendant to comply with the law. That is and has been since before the founding of our nation the proper role of the attorney general.”
Middleborough and Hamilton, in nearly identical briefs written by the same lawyer, acknowledged the need for more housing in Massachusetts. But they said it remains unclear whether the MBTA Communities Act, which is focused only on portions of communities in eastern Massachusetts near MBTA facilities, will actually address that need.
“That nebulous need, however, is not sufficient grounds for the attorney general to invoke general enforcement authority on the basis of protecting the ‘general welfare,’” the communities said in their brief. “This is especially true, as is here, where the statute in question is narrowly tailored with respect to its geographic applicability and includes a specific consequence [the loss of grant funds] for failing to comply with the statute, which does not include any authorization for the attorney general to file suit to compel a municipality to adopt a compliant zoning bylaw or ordinance.”
In its brief, NAIOP Massachusetts, the trade group representing the commercial real estate industry, described in great detail how restrictive zoning for multi-family housing ends up driving up housing costs, forcing people to move farther away from city centers, which eats up open space and ends up boosting greenhouse gas emissions.
“Though empowered to craft zoning ordinances, local governments cannot be allowed to willfully ignore state statutory mandates concerning matters of critical public concern without recourse,” NAIOP said in its brief. “Recourse for noncompliance must include declaratory relief and, in situations like Milton, where noncompliance was an intentional result of the vote of the town, injunctive relief should be available. The most logical and appropriate form of injunctive relief for intentional noncompliance is a prohibition on the use of discretionary permitting of multi-family housing.”
In its brief, the Massachusetts AFL-CIO said the housing crisis is hurting Massachusetts and its residents and the MBTA Communities Act is a good way to address the situation. “With that background in mind, it is absurd to contend that the Legislature took the extraordinary step of restricting the attorney general’s statutory and common law authority to enforce the Commonwealth’s laws,” the union group argues. “If the Legislature intended to bar the attorney general from enforcing the act, it would have provided ‘some express legislative restriction.’”
Several of the legal briefs supporting Milton also took the position that the town had been misclassified as a rapid transit community, which requires more rezoning to accommodate more multi-family housing. The briefs, including one by Milton Rep. William Driscoll Jr., who is currently running for the state Senate, said Milton is not a rapid transit community because it doesn’t have any subway stations within its borders.
“By its plain meaning, a subway is an electric railway operating in whole or in part below the surface of the ground. That is incontrovertible,” Driscoll said in his brief. “In contrast, the Mattapan Trolley Line is and always has been an above ground trolley car service that runs from Mattapan for 2.54 miles to Dorchester with four stops in Milton. The trolley line’s ‘President Conference Committee’ light-rail overhead electric line trolleys were built in the 1940s. All passengers pay their trolley fare as they board, remain upon, and exit each stop at ground level. It is not a subway.”
Milton is the only community designated as not in compliance with the MBTA Communities Law, but a host of other municipalities may soon fall into that category if they fail to rezone by the end of this year. Middleborough and Hamilton filed briefs in the SJC case, as did a group opposed to the law in Winthrop. Opposition is also present in Holden, Marblehead, and a handful of other communities.
A recent CommonWealth Beacon/WBUR poll found that 50 percent of likely voters believe the MBTA Communities Act is “good policy,” compared with 31 percent who see it as “bad policy” and 19 percent who took no position (toplines/crosstabs).
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