AFTER THE STATE’S high court offered broad approval for the attorney general to enforce a sweeping state housing law, the Healey administration is tinkering with new emergency regulations to abide by the court’s conclusion that previous guidelines were rolled out incorrectly and could not be enforced.
With significant substantive changes to the rezoning requirements unlikely in the reworking of regulations that’s now underway, it seems only a matter of time until communities that are out of step with law will have to comply or face the music.
The MBTA Communities Act, a 2021 law, requires cities and towns near public transit to zone a district of reasonable size to include multifamily housing by right. While the vast majority of the 177 communities are compliant or in the process of adopting new zoning to meet the law’s requirements, 28 municipalities are non-compliant because they missed their deadline to submit acceptable rezoning plans. Another three are on the cusp of following the path taken by Milton, with referendums scheduled to toss their compliant plans.
For her part, Attorney General Andrea Campbell told reporters the court decision should motivate the 31 municipal holdouts.
“ We don’t see renewing any legal action happening,” Campbell said. “If anything, we see this as an opportunity to make sure folks are aware of the recent decision that this law is mandatory and that we have the authority to enforce it.”
Justices’ remarks during oral arguments broadly foreshadowed the ruling, leaving towns and the state preparing for a few possible outcomes. But the high court tossing the entire housing law seemed to be clearly off the table.
Justice Scott Kafker referred to the law as “mandatory” at arguments, with the only question being if the consequences for noncompliance were exclusively the loss of specific grant funds. The court’s ruling similarly described the MBTA Communities Act as a “legislative mandate.”
Milton argued that the state was limited to withholding a set of grants that were listed explicitly in the law. If the Legislature wanted to give the attorney general the power to enforce the law by bringing municipalities to court to demand “equitable relief,” like a court order that the municipality rezone, it should have said so specifically, the town argued.
The SJC’s 22-page ruling dispensed with that argument.
“In light of the Attorney General’s unique and well-established role as a protector of public rights, we conclude that the penalties provided for in the act do not preclude the equitable relief that the Attorney General is authorized to pursue under her broad statutory power,” Chief Justice Kimberly Budd wrote.
The other issue seemed to turn on a brief paragraph within the law itself, which said the Executive Office of Housing and Livable Communities “shall promulgate guidelines to determine if an MBTA community is in compliance.”
Milton was noncompliant because it missed the deadline established by the guidelines for approving a rezoning plan. Justice Gabrielle Wolohojian noted in October that if the guidelines were really regulations – and they seemed to be – that were rolled out incorrectly and therefore not viable, there would be nothing for the attorney general to enforce. Regulations have to be promulgated through a specific state process, which includes notices and impact statements that the court ruling said were missing when the state put out its MBTA Communities guidelines.
These remarks during oral arguments gave some notice that the court ruling might require a reworking of the regulations, something the Executive Office of Housing and Livable Communities said yesterday it had already begun preliminary work on before the opinion came down.
Gov. Maura Healey said the housing office expects to issue emergency regulations by the end of the week, which would take effect immediately. While the exact scope of the new regulations is still being finalized, a spokesperson for the housing office said there is the expectation that there will be some additional time for noncompliant communities to become compliant.
The attorney general and the housing office expect to do significant outreach work after the new regulations are promulgated, to make the new timelines clear and offer assistance to municipalities on compliance.
While the state prepared for possible regulations updates, Milton has been moving forward with contingency rezoning plans. A consultant presentation on December 12 refined the plan boundaries for a new multifamily housing zone to reduce the impact on the eastern part of the town.
Some are still holding out hope that the housing office will rethink Milton’s classification as a “rapid transit” community under the new regulations, which carries the highest requirement to rezone for future housing.
By most measures, the court’s ruling was a clear defeat for Milton, but town attorney Kevin Martin homed in on the regulatory procedure win.
“We’re very pleased the Court recognized the critical importance of the state Administrative Procedure Act’s procedural rules for agencies when they are issuing regulations, like the Executive Office’s guidelines here,” Martin said. “In that respect today’s decision was a victory not only for Milton but also the rule of law. We hope that in issuing new guidelines, the Executive Office takes account of the many serious substantive concerns raised not only by Milton, but also by other affected communities.”
The details of sending out new regulations aside, state leaders, housing advocates, and policy groups largely characterize the court’s ruling as a win for the showpiece housing law. Once the housing office finishes tinkering under the hood and throws on a fresh coat of procedural paint, the housing act will be back in business – and communities will ignore it at their peril.
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