FOUR YEARS AGO, at the start of the pandemic, Sen. Brendan Crighton of Lynn stood masked on the floor of the state Senate and argued that an ambitious new housing law should make its way into a sprawling new development bill. His brief remarks, and statements at the time from other lawmakers, are now key considerations before the Supreme Judicial Court as it weighs what tools the state granted to enforce the MBTA Communities law.
“That’s probably stood out the most – having your name mentioned in court,” Crighton said on The Codcast a few days after the high court heard arguments about the law. “Not always a great thing, but in this instance, I was proud to have that referenced. Certainly would’ve been a little more careful drafting my speech and practiced a few more times before giving it, had I known it was gonna be such a big deal.”
What legislators meant to include in the MBTA Communities Act – requiring 177 mostly Eastern Massachusetts cities and towns near public transit to zone for a district of reasonable size where multifamily housing is allowed by right – has dredged up an age-old fight over local versus state power.
Attorney General Andrea Campbell’s suit to force Milton to comply with its obligations under the law turns in part on who gets to make the rules about how Massachusetts tries to address a crippling housing crisis. Lawmakers say they thought they were being clear at the time that they wanted the AG to have that authority – to give the law “teeth.”
“What I found interesting was what the case was not about,” zoning expert and consultant Amy Dain said on The Codcast. “The justices and the lawyers in the courtroom were not debating whether there’s a housing crisis. They were not debating whether zoning has been a barrier to needed housing development. They weren’t even debating whether it’s appropriate or good policy for the state to take leadership on zoning policy. They weren’t debating whether the state has authority to lead on zoning policy. It does.”
Instead, Dain noted, the justices were zeroing in on the “nitty gritty” of the law’s wording, in the space of just a few paragraphs tasking the executive branch housing office with “promulgat[ing] guidelines to determine if an MBTA community is in compliance.”
And, critically, justices wondered whether the fact that the law includes some specific grants that can be withheld if municipalities do not comply indicates that lawmakers preferred that approach and never intended the attorney general to be able to force compliance through the courts. The law never mentions enforcement by the attorney general.
That the act scooted through as a Senate amendment included after late-night closed-door negotiations on a 2021 economic development bill is “being pointed at as limited evidence that there was a legislative process, when I feel like it was just the opposite,” Crighton said. “We had been talking about this for a long, long time. But certainly, when we pass a law, the intent is for it to be enforced. And, historically, that’s what the attorney general has done.”
House and Senate leaders say the measure was intended to give the executive branch leeway in determining what reasonable zoning obligations looked like, as well as rules for complying. House Ways and Means chair Aaron Michelwitz told reporters there needs to be enforcement through the AG’s office “to make it mean anything, for it to have teeth.”
Crighton said that has been the intent of the law since its initial consideration pre-pandemic. He does not recall worry at the time that the way the amendment was written might close off enforcement options.
“When we pass laws, we assume that the attorney general and their branch of government is going to enforce them,” he said. “So while we listed certain grants, in my mind at the time and now still, those were examples to highlight that there are consequences, and they certainly weren’t meant to be exclusive, by no means.”
Dain said the amount of running room left to the Executive Office of Housing and Livable Communities to craft guidelines “was very tailored, a really thoughtful approach.”
City and towns all have different proximity to transit, different layouts, and different political inclinations when it comes to rezoning. “It’s been pretty compelling that we already have close to 80 communities that have revised their zoning to meet their performance standards,” Dain said, “which is a sign that the state nailed it, that they really came up with standards that were implementable.”
At arguments at the Supreme Judicial Court, Justice Scott Kafker appeared skeptical that the state tried to deal with a 200,000-unit housing shortage and cost of living crisis by offering carrots as incentives but a mere “twig” rather than a stick if cities and towns balked – his description of the threat to withhold money from grant programs that many communities don’t even apply for.
That intent isn’t fully baked into the court record and the justices will still need to parse whether the guidelines were promulgated correctly by the housing office. But the lawmakers who pushed the MBTA Communities Act through are so far in political lockstep – they intended municipalities to comply, with help from the state, or face a day in court.
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