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8-20-2024 10:18pm
Town of Milton Defends Against MA AG Suit that Seeks Compliance with MBTA Communities Act
Darlene Cancell
Editor
The Town of Milton on August 19th has answered the Massachusetts Attorney General’s attempt to enforce its compliance with the MBTA Communities Act, by asking the state’s highest court to find that, among other things, (1) the AG has no such enforcement authority, and (2) the town’s noncompliance with the MBTA Communities Act can only be penalized monetarily.
On June 3rd, the MA AG filed its brief with the Massachusetts Supreme Judicial Court, asking the Court to find that the MBTA Communities Act and related Guidelines apply to the Town of Milton. The AG also asked the Court to find that it had authority to enforce the MBTA Communities Act through declarative or injunctive relief.
In its recent answering brief, the Town of Milton argues, “Here, the Legislature specified the consequence for municipalities that do not comply with the MCA: they lose funding under four specific state programs. . . . The MCA contains no mechanism to compel compliance.”
Milton also argues that the related Guidelines for compliance, issued by the Executive Office of Housing and Livable Communities (EOHLC), are procedurally defective, and therefore invalid. The town says the Guidelines were not promulgated in a process required by Chapter 30A rulemaking procedures.
The town additionally states that the EOHLC’s Guidelines are an unlawful attempt to “seize authority granted to local governments in the constitution.” It argues, “Nothing in the MCA grants EOHLC authority to so fundamentally transform cities and towns throughout eastern and central Massachusetts.”
The MBTA Communities Act, M.G.L. Ch. 40A, Sec. 3A, was signed into law by former Governor Charlie Baker in January 2021, and provides that certain municipalities that are served by public transit stations shall zone for at least one district of reasonable size that must permit multi-family housing (with minimum gross density of 15 units per acre) as of right. Communities that fail to comply cannot receive funding from the state’s Housing Choice Initiative, Local Capital Projects Fund, MassWorks infrastructure program and the HousingWorks infrastructure program.
On February 14th, Milton voters rejected Article I, which its Select Board had prepared for a vote. Article I proposed zoning that attempted to comply with the MBTA Communities Act.
Two days later, EOHLC notified the town that it was out of compliance. On February 27, the AG filed its complaint seeking to compel Milton to comply with the MBTA Communities Act.
In Town Meeting on May 6, Westwood residents passed Article 21, approving the creation of a Mixed Use & Multi-Family Residential Overlay District (MUMFROD) in selected parts of town for multi-family housing as of right. Arguments voiced by residents in favor of its passage included the need to comply with the MBTA Communities Act, a desire to retain local control rather than risk the installation of a state-supplied interloper, and the expense of defending a suit by the AG.
Updated 9/1/2024 at 8:53 p.m.
