THE SUPREME JUDICIAL COURT, grappling with a lawsuit against the town of Milton for refusing to cooperate with the ambitious MBTA Communities housing law, prodded attorneys about the possibility that the law is nothing but a “paper tiger,” where the state’s only recourse against municipal noncompliance is a “twig” – the loss of state grant funds – rather than the “stick” of a court order.
During almost an hour of arguments before the high court on Monday, six of the seven justices dug into how “regulations” versus “guidelines” are treated under the 2021 law and just how clear lawmakers need to be when it comes to legal remedies for noncompliance. Justice Bessie Dewar, who was state solicitor when the law passed, did not participate.
It is not unusual for justices to latch onto different points of law during oral arguments, though the court tends to prefer a united front when an opinion is finally handed down. There seemed to be a mixed reception to the arguments on Monday, with some justices inclined to parse legal minutiae that could support a narrow ruling on technical grounds. Others appeared compelled by a broader public policy argument that could allow wide latitude for the state to enforce laws designed to address the crippling housing shortage.
The fight over local versus state control centers on Attorney General Andrea Campbell’s suit against Milton, brought earlier this year, to enforce the town’s obligation under the new MBTA Communities Act, which requires communities served by the MBTA’s subway and commuter rail system to rezone areas near public transit for more multifamily housing.
The brief language of the law, introduced in the middle of a sprawling economic development bill, says that communities “shall” have a district allowing for multifamily housing by right a certain distance from transit, and establishes a set of funding sources that can be withheld or withdrawn if a community resists.
It also directs the Executive Office of Housing and Livable Communities to “promulgate guidelines to determine if an MBTA community is in compliance with this section.” But it is silent on whether or not the attorney general has the power to sue to force a town into passing acceptable zoning.
“You can compel compliance with the law,” Justice Scott Kafker said to Assistant Attorney General Eric Haskell. “The town can’t vote not to abide by state law. It’s mandatory, right? … So if that’s the case, then the question is, are the remedies exclusive?” Kafker asked, referring to whether the only penalties are the ones clearly listed in the law – the denial of state grant funds. “That’s really the only issue,” he said.
Milton is currently the sole municipality out of 177 cities and towns impacted by the law to be out of compliance. A zoning plan that would have met state guidelines was passed by the local Town Meeting last year only to be shot down by referendum in February. Some 75 communities have already passed compliant zoning, but a handful of other municipalities either say outright that they do not intend to comply or they are waiting on an SJC ruling to determine next steps.
Campbell is looking for a declaration from the high court that Milton must comply with the MBTA Communities law and establish that the AG is empowered to enforce it. At a press conference Monday – a move to shape the narrative even before her office could make its case before the court – Campbell stood alongside housing, union, and business advocates and said she worries about a potential domino effect if the court rules in Milton’s favor.
“I’m confident that if the court hears our arguments, reads the briefs from 70 organizations in this diverse coalition, they will come out on the right side here and make it clear that the MBTA Communities law is not only mandatory, but also a tool to address our housing crisis and even our transportation challenges,” Campbell said. “So I’m sitting in a place of optimism, while also making it clear that if this court comes on the opposite side or comes out with the wrong decision, it not only will set us back in terms of addressing our housing crisis, it will do significant damage to the rule of law.”
Milton is pushing back on the law, and the attorney general, from multiple angles. The town’s argument before the court on Monday focused on how the legislation specifies the state grant funds that communities would be ineligible for if they don’t comply with the law. Milton’s lawyer, Peter Mello, said that by spelling out the programs communities could not seek funding from – MassWorks and Housing Choice grants as well as the Local Capital Projects Fund – the law established those as the only penalty a city or town could face for refusing to rezone.
“If the Legislature thought the harm from not complying with the statute were effectively irreparable, then the Legislature could have specifically provided for injunctive [relief],” Mello told the court. “It has done so in many other statutes,” he said, adding, “it can always go back” to redo the law.
Haskell from the attorney general’s office told the justices that Milton last received $1 million through the MassWorks program in 2012 and nothing from the three programs since. He agreed with Kafker’s characterization that the law could be considered “a paper tiger” if those are the only consequences.
“This is a significant piece of legislation, right?” Kafker asked Mello. “We’re dealing with one of the biggest problems in Massachusetts, and the Legislature’s only remedy if they don’t comply with their ‘shall’ language is three minor grant programs that most towns haven’t gotten money from?”
The Legislature was empowered to place a specific value on refusal, Mello argued. Instead, he said, lawmakers opted against explicitly granting the attorney general the power to seek a court order requiring compliance and laid out only certain grants that could be imperiled.
“At the end of the day, the Legislature gets to decide the data here, and we know that they’re laser focused on what the remedy should be,” he said. “Because, originally, the statute provided for three sources of grant funding to be withheld if you weren’t in compliance. But the Legislature went back a couple of years later and increased that to four. They’re focused on this issue and they decided – weighing all of the different values that are at stake here – that’s the appropriate remedy. If they wanted to provide for something more, they could provide for more financial penalties.”
Haskell argued that the limited legislative history around the MBTA Communities Act suggests that lawmakers understood the guidelines to be requirements, even if guidelines are usually “background music” when compared to regulations.
He pointed to a press release from Senate President Karen Spilka after the 2021 legislation passed, which includes a note that it “requires” designated MBTA communities to be rezoned.
“There’s nothing to prevent the Legislature in its legislation from saying, ‘Hey, these guidelines are gonna have teeth and they’re going to be specifically enforceable,’” Haskell said. “In our view, that’s what the Legislature has done here.”
Justice Dalila Wendlandt tweaked Haskell on that claim.
“I’m wondering what ‘guidelines with teeth’ is,” she said. “How is that different than a regulation if guidelines are usually background information and the town of Milton’s lack of compliance with the guidelines is what the AG is trying to enforce – and thereby calling them guidelines with teeth – aren’t they regulations?”
An argument included in briefs but of little interest to the justices on Monday claimed that Milton’s trolley system should not qualify it as a “rapid transit” community with higher zoning requirements and an earlier compliance deadline.
The town took aim at the guidelines themselves, arguing that the housing office missed a step in promulgating the new rules and therefore overstepped its authority. While the AG’s office argued the error was harmless, Milton said it is an essentially invalidating flaw in the process, which Justices Frank Gaziano and Gabrielle Wolohojian probed.
Under the guidelines, the town is not compliant because it did not pass a zoning plan by the end of 2023. A new set of guidelines put out in August 2023 also expanded the number of state grants that could be withdrawn for noncompliance. In February, after the referendum vote, the state withdrew a $140,800 Seaport Economic Council grant previously awarded to fund accessibility improvements at Milton’s waterfront and restoration of its seawall.
The court might be able to avoid the broader enforcement question with the MBTA Communities Act, some justices suggested, if improperly rolled out guidelines rendered the whole question moot.
“If I understand correctly, the point at which Milton, in your view, violated the statute, was when it didn’t enact a zoning plan by a certain date,” Wolohojian said to Haskell. “But if the certain date only comes from the guidelines and the guidelines need to be done over, then what is there to enforce against Milton?” she asked.
The deadline for municipalities designated as “commuter rail” or “adjacent” communities to submit plans comes at the end of December. These cities and towns represent the bulk of MBTA communities, with hundreds of thousands of future housing units potentially in the balance.
In the remarks before the hearing, Campbell was joined by leaders from several business, housing, and union groups who submitted briefs accompanying the case. They said the law is a critical tool in closing a 200,000-unit housing gap across the state. The average Greater Boston single-family home price is approaching $1 million, and production is sluggish, said Jesse Kanson-Benanav, director of the pro-housing group Abundant Housing Massachusetts.
“Almost every employer that I have talked to recently has said that they either have an employee or a candidate for a job who has said, ‘I really love it here, but I can’t afford to stay here and I have to move my family somewhere else that’s more affordable,’” said Brooke Thomson, president and CEO of Associated Industries of Massachusetts. “The housing crisis impacts the economy and our workforce. The soaring cost of buying a home in Massachusetts is driving our best and brightest to less expensive regions of the country.”
Campbell initially pressed for an earlier court date to give the commuter rail and adjacent towns time to adapt before December, but a slew of challenges to potential ballot initiatives on top of the court’s normal caseload resulted in the October date. SJC decisions generally come out within 130 days of oral arguments, so the court could work to issue an opinion prior to the upcoming deadline or wait until nearly February to weigh in.
In the meantime, Milton is working on a contingency rezoning plan in the event of an unfavorable high court ruling. Voters in East Milton offered up the loudest cry against the initial rezoning plan during the February referendum, so the town Planning Board is reviewing options to reduce the impact on East Milton while increasing the potential density in an area bordering the trolley line.
If she receives a favorable ruling from the SJC, Campbell said she hopes Milton comes into compliance “as soon as possible.”
“And I think that’s reasonable to expect that,” she said. “They actually had a plan that was compliant. They received resources from the state and funding to help with the planning process, to have technical assistance, to bring on experts to inform that plan. And so I think they have everything it would take to implement a plan, even if they needed to tweak it.”
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