WITH ABOUT TWO weeks to go until noncompliant MBTA Communities have to submit their plans to abide by the multi-family housing law, the poster child for resistance is considering its next steps. After a Milton planning board meeting last week aired continued frustration with the law’s potential impact on the town, an MBTA Communities Act special planning meeting is scheduled for this evening.
“My thought is we’ve been put in a really difficult position,” said planning chair Meredith Hall at last week’s meeting. After the recent Supreme Judicial Court decision declaring the law constitutional once regulations are put out correctly, “I don’t think anyone can disagree that we have to be compliant at minimum with the statute and what the law says. We have to put an action plan in before we have final regulations and before there’s been the public process, so that is a bit of a challenge in itself.”
In resolving a lawsuit stemming from Milton’s refusal to pass new multifamily zoning, the SJC took aim not at the substance of the housing guidelines, but the way they were promulgated by the Executive Office of Housing and Livable Communities. Six days after the SJC opinion, the housing office filed emergency regulations that would take effect immediately and last for three months while the official regulatory process played out.
The new emergency regulations are, for the most part, the same as the prior guidelines, though one change appears directed at Milton. In defining “rapid transit communities,” which had the earliest deadline for compliance and the highest rezoning requirement, the earlier rules described the communities as having at least 100 acres served by a subway stop or Silver Line bus service.
Milton had latched onto the subway stop definition, asking the housing office to reconsider its classification because just one part of the town is served by the Mattapan High Speed Trolley, which runs its own route at the end of the Red Line.
Many residents, Hall noted, still strongly believe that there is no subway station in
Milton because the town is 0.95 miles from the Ashmont station and within 5 miles of a commuter rail line. That would make Milton more like the communities that are “adjacent” to public transit rather than directly served by it, those residents argue.
Now, the emergency regulations define subway stations as “any of the stops along the Massachusetts Bay Transportation Authority Red Line, Green Line, Orange Line, or Blue Line, including but not limited to the Mattapan High Speed Line and any extensions to such lines.”
Under the emergency regulations, noncompliant communities have until the end of the day on February 13 to submit a new action plan to the state, outlining their plan to achieve compliance. The communities then have until July 14 to submit a full compliant application.
Since the regulations were released, two communities have submitted their action plans – Marblehead and Norton. In both cases, the towns opted to wait until the high court ruled on the law’s constitutionality and enforcement.
The Norton Planning Board voted on January 21 to send a plan to the state outlining steps toward compliance. For now, their plan includes placeholder language to give them some “buffer” to land on a final proposal.
The state now has “a whole lot more bite,” Robert Welch, a member of the Norton Planning Board, said at the meeting, “because remember when we were going through this, and a lot of other towns were saying ‘well, let’s wait ‘till the Milton case gets resolved’ because there were big constitutional issues with it. And it’s been resolved.”
Tom Dougherty, an attorney in Milton, offered an analysis of the SJC ruling before the board, arguing that the housing office has not complied with the ruling because the new guidelines were put out before the full regulatory process.
“It’s not an after-the-fact formality that allows the HLC to gather required interested party data and arguments and views after first requiring, in an action plan, that the town make a binding commitment to all of the HLC’s regulation requirements as stated in their new document without the HLC gathering and considering the required public inputs,” Dougherty said. “It’s backwards. It’s upside down. It’s not legal in my view.”
A housing office spokesperson said Monday that the two-week public comment period will begin on January 31 and the housing office will consider feedback to the permanent regulations into late February.
Dougherty and several planning board members still seemed to hope for reclassification. If they were considered a commuter rail community or adjacent community, they noted, they would only have to rezone for a potential addition of 15 percent or 10 percent of their total units rather than 25 percent.
The planning board will have to work with the Milton select board on any next steps, but Hall suggested having the classification discussion with the housing office again and trying to move forward with something that might comply.
Planning board member Cheryl Tougias noted that because the board resisted having public discussion on potential zoning during the fall, while the SJC considered the case, there is little information about what Milton residents would or would not support. Submitting zoning that leans on existing multifamily zoning districts, Tougias said, seemed to run counter to the purpose of the law and might be rejected by the housing office.
Other members raised concerns about the strain on resources if there were suddenly an influx of units – which researchers say is deeply unlikely.
“It’s crazy what Maura Healey is doing to us,” Milton planning board member Maggie Oldfield said. “She doesn’t have a plan for it, so unfortunately we kind of have to stand up and defend ourselves.”
Kathleen O’Donnell, of the Milton Zoning Board of Appeals, offered her frustrated two cents.
“I don’t think this is the appropriate time to start discussing whether or not we think MBTA Communities makes a lot of sense,” she said. “We spent almost $300,000 in legal fees to find out that the MBTA law is in fact enforceable. I don’t understand why we wouldn’t be just moving along in a rational way to fill out a form and send it along to the state and get things moving. To sort of revisit this whole situation about the Red Line, and all that sort of stuff, doesn’t do us any good.”
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