Arguments in the MBTA Communities case question the AG’s authority, the regulatory process

Oral arguments were held Monday in a Supreme Court case that could shape the state’s response to the housing crisis, but there was little discussion about housing in the courtroom.

Attorney General Andrea Campbell is suing the city of Milton for failing to comply with an MBTA community law that requires the city to zone for more housing production. However, while the lawsuit rested primarily on the idea that the law was mandatory, the court focused more on questions raised by Milton about whether the attorney general had the authority to enforce the guidelines and whether the guidelines themselves were valid.

“This is an important issue for two reasons. First, to ensure the effectiveness of the MBTA Communities Act as a tool to address our housing crisis, and second, to protect the rule of law and maintain our legal structure here in Massachusetts,” Attorney General Andrea Campbell said at a news conference ahead of the hearing on Monday. “No one should be able to pick and choose which laws they want to follow, and I hope the court will see the significant consequences of continuing to allow non-compliance with Milton.”

The MBTA Communities Act, passed in 2021, requires the 177 cities and towns served by the MBTA to have at least one zoning district where multifamily housing is permitted by law. Milton, classified as a rapid transit municipality because of its four stops on the Mattapan Trolley line, was required to create a compliant zoning district by Dec. 31, 2023.

While town meeting voters approved a zoning proposal that would follow the guidelines in December, opponents collected enough signatures to force a referendum to overturn the decision. In February, 54% of voters rejected the proposal.

On February 27, Campbell filed a lawsuit against the city in an attempt to force it into compliance. She asked the court to compel Milton to follow the law or appoint someone to create a new zoning district for him.

Attorney Kevin Martin, who represented the city on Monday, said that because the law clearly provides different consequences for municipalities that don’t follow its recommendations, it precludes legal action by the attorney general as an enforcement measure.

“Ultimately, the legislator will decide on the value here. “We also know they are focused on what the solution should be,” because the original list of three non-compliant cities for grant programs they would not be eligible for was later increased to four after the bill went into effect, he said. “If they wanted to provide more, they could. They could have foreseen the financial resources. They could have secured an injunction.”

Judge Scott Kafker disputed this argument, at one point calling the funding loss a “paper tiger.” According to Deputy Attorney General Eric Haskell, Milton has not received funds from specific state programs since 2012, when it received $1 million from the MassWorks infrastructure program.

“This is a significant piece of legislation,” Kafker said. “We’re dealing with one of the biggest problems in Massachusetts and the only remedy the Legislature has to offer if you don’t comply is three smaller grant programs that most cities didn’t get money from?”

“So instead of a stick, they made a twig?” he added.

In response to the justices’ questions about whether Milton voters’ rights were restricted in the wake of the referendum, Haskell cited legal precedent in which the SJC previously allowed the state to enforce regulations even after local voters decided otherwise.

“Even if a mandate under state law is thus subject to a political process of adoption and implementation, it is still a mandate and the city must still comply with it,” he said. “The court still has equitable remedies to compel the city to comply with this mandate.”

Milton also argued that compliance guidelines created by the Executive Office of Housing and Condominiums are unenforceable due to the process by which they were adopted.

When a state agency creates new regulations, they must go through a public comment process called Chapter 30A, which also involves the submission of a small business impact statement and other economic analysis. EOHLC did go through an extended public comment period soliciting input from all 177 communities affected by this law, including Milton, but did not submit a small business impact statement.

Haskell stated that this process is not necessary because the EOHLC writes guidelines, not regulations, and that in the past, when the Legislature directed agencies to create “guidelines,” they were not subject to Rule 30A.

Judge Frank Haziano asked Haskell what would happen if the court agreed with Milton that the guidelines were invalid, and Haskell compared the situation to other past situations in which agency regulations were found to have violated 30A. In his example, the regulation in question had already been published, adopted and applied for some time before the court’s decision was issued.

“This court said, ‘We will immediately reject these guidelines and this policy.’ We will give the agency some time to develop the regulations,” Haskell said. “If that is the outcome that this court reaches, that is what I would advise HLC (Housing and Living Communities).”

Judge Gabrielle Wolohojian asked whether Milton would no longer be in violation in such a case because the guidelines set a deadline of 2023. Kafker, however, rejected that proposal, saying the MBTA Communities Act took effect immediately after it was signed, before the guidelines were published.

“I understand they may question whether they are an MBTA community. I understand that they may question the obligation to submit a spatial development plan. But can they question all the subtleties of it all? he said. “They failed to present a plan that may have violated one element of these guidelines. They just didn’t comply.”

The court did not indicate when a decision in the case would be issued. Campbell said Monday she hopes for a decision “sooner rather than later” so that cities still working on their own zoning proposals have clarity on their responsibilities.

As of last week, 76 municipalities had submitted zoning proposals to the state for final approval, and 33 had received approval. Campbell said that of the cities and towns that have voted on their development plans so far, 85% supported them.

A minority of towns said they would not comply or postponed their decision until the outcome of the Milton case was known. In addition to Milton, one town, Holden, is not officially in compliance with the law. Although the deadline for Holden to submit a new development plan has not yet passed, the company has not submitted the action plan required by January 31, 2023, and the city authorities have stated that they do not intend to comply with it.

Campbell said she hopes the court will side with her and confirm that compliance is mandatory.

“We would rather work with the community than take them to court,” she said. “But when a decision is made to break the law, my office will stand ready to fulfill our responsibility to enforce it.”