THE ATTORNEY GENERAL has the power to enforce the sweeping and controversial MBTA Communities Act, the Supreme Judicial Court ruled on Wednesday, but the housing guidelines themselves cannot be enforced because the executive housing office made mistakes when it issued them.
“We conclude that the act is constitutional and that the Attorney General has the power to enforce it,” Chief Justice Kimberly Budd wrote for a unanimous court. However, the Executive Office of Housing and Livable Communities failed to file notices and impact statements required by the Administrative Procedure Act, Budd wrote.
Because the office failed to comply, the guidelines are “legally ineffective and must be repromulgated in accordance with [state law], before they may be enforced,” she wrote.
To fix the procedural issues, the Executive Office of Housing and Livable Communities is prepared to file emergency regulations by the end of this week, consistent with the court’s decision, the governor’s office said. The emergency regulations will be effective immediately upon filing.
The ruling caps off a contentious few months after Attorney General Andrea Campbell sued the town of Milton for refusing to comply with the zoning law, which requires that municipalities within a certain distance of the MBTA system have at least one zoning district “of reasonable size” in which multi-family housing is allowed.
There are penalties for noncompliance, but the law gives the executive housing office the power to determine how cities and towns are considered compliant. The office described these determinations as “guidelines with teeth,” but the court concluded that they are actually regulations and have to be issued through the proper regulatory process.
Campbell argued that she is able to sue to enforce the law, and the state said it is allowed to deny a wide swath of funding to towns that refuse to rezone.
Milton argued that the only tools the state had in its toolbox were a few specific grants that could be withheld for non-compliance, and the attorney general is not able to force the affluent Boston suburb to begin upzoning roughly 150 acres.
Milton’s interpretation flies in the face of the law’s purpose and the well-established powers of the attorney general to enforce state law, Budd wrote. It would “thwart the Legislature’s purpose by converting a legislative mandate into a matter of fiscal choice,” she wrote.
The court’s decision dropped eight days after the end-of-2024 deadline for all commuter rail communities and communities adjacent to MBTA rapid transit stations to comply with the MBTA Communities Act deadline. Attorney General Andrea Campbell had hoped that the SJC would take up the case and rule well in advance of December 31, but the court waited until October to hear arguments.
Under the court’s usual schedule, opinions are released within 130 days of arguments. The state could have sat in a holding pattern until well into February, as a growing number of cities and towns said they would wait to act on contentious new zoning until the SJC told them if compliance was mandatory.
In a statement after the ruling, Gov. Maura Healey called the decision “a major victory for our efforts to increase housing across the state and lower costs. … 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.”
Campbell released a statement, thanking those communities that have complied with the law. “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,” she said.
CommonWealth Beacon reached out to Milton’s town administrator, who did not respond by press time.
The MBTA Communities Act was a small provision tucked into a sprawling 2021 law that has become a flashpoint of state versus local control. While most of the affected 177 cities and towns have gotten on board with the act – 146 of them are either compliant or in interim compliance as of the start of 2025 – a growing number have opted for open rebellion.
The town of Milton was the first mover. As a “rapid transit” community, it had to submit a compliant plan by December 31, 2023.
After its Town Meeting approved a zoning plan to comply with the requirements of the MBTA Communities law, Milton voters then chose to reject the zoning plan in February 2024. The fiercest rebukes came from the eastern part of Milton, where residents feared they would be burdened with too much additional housing.
Opponents of the zoning plan argued the Mattapan trolley system that serves Milton is “a unicorn” with less regular service than the main MBTA system and referred to as different than the other lines. In a letter from Milton Select Board chair Michael Zullas to Chris Kluchman, deputy director of the Executive Office of Housing and Livable Communities, the town asked to be classified as an adjacent community, which would have a later compliance deadline and a lower unit rezoning requirement.
But the state noted several communities count as rapid transit without subway service, like those served by the Silver Line buses.
“The guidelines do not – and cannot – take into consideration the quality of the service or the type of equipment used on any given line,” officials responded to Milton’s plea.
By early 2024, only Milton was officially non-compliant for blowing past its end of 2023 deadline, but towns like Holden were publicly announcing their intentions to resist their deadline the next year.
After the February vote in Milton, Campbell immediately declared her intention to sue Milton for refusing to rezone.
“I’m disappointed that a select group of Milton residents chose to be part of the problem rather than the solution to our housing affordability crisis,” she posted on social media. “My office has made it clear that compliance with the law is mandatory. When a municipality elects to evade its responsibility to comply with the law, we will meet our responsibility to enforce the law.”
The defiant posture has spread to 31 cities and towns, which decided not to submit compliant plans before the December 31, 2024, deadline given to the largest block of MBTA Communities. They argue the act as an unfunded mandate, forcing them to expand beyond their capacity.
Even proponents of the act caution against describing it as a silver bullet in the fight against the housing shortage. It requires no units at all to be built, but lays the groundwork for future growth, noted Luc Schuster, the executive director of Boston Indicators, the research center of the Boston Foundation.
“Even within these small zones, municipalities retain extensive local control to determine things like the shape and form of what is allowable,” he said in March. “And the required density in these zones is usually quite modest.”
Campbell’s suit is a test case of Beacon Hill versus municipal power, in a state where municipalities often expect deference on local planning even as state lawmakers keep them on short leashes through the home rule petition process.
The 2021 law says cities and towns “shall” rezone, which lawmakers and Campbell say means it was always intended to be mandatory and enforceable.
The act scooted through the Legislature as a Senate amendment included after late-night closed-door negotiations on a 2021 economic development bill. It made no mention of the attorney general and listed only a handful of grants that might be imperiled if towns resisted rezoning.
As murmurs of rebellion grew, the state expanded the list of funding opportunities that could be denied to municipalities. It also bulked up the incentives, launching an MBTA Communities Catalyst Fund to provide grants for housing and infrastructure projects to communities certified as compliant.
After the court heard arguments, original amendment sponsor Sen. Brendan Crighton told CommonWealth Beacon the circumstances are “being pointed at as limited evidence that there was a legislative process, when I feel like it was just the opposite. 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.”
The court agreed.
“[T]he Attorney General’s enforcement power,” Budd wrote, “is not dependent upon whether a particular statute happens to reference it.”
The post SJC says the attorney general can enforce MBTA Communities Act, but tosses regs appeared first on CommonWealth Beacon.