MBTA Communities Act is Constitutional, AG Has Power to Enforce It, But Not Right Now

Both the Town of Milton and the Massachusetts Attorney General Andrea Joy Campbell have succeeded on a portion of their arguments regarding whether the state Attorney General (AG) can enforce the MBTA Communities Act against Milton. According to the January 8, 2025 ruling of the Massachusetts Supreme Judicial Court in the case of Attorney General vs. Town of Milton et al.:

• The MBTA Communities Act is Constitutional; and 
• Each MBTA community must have a zoning bylaw allowing for at least one district of reasonable size where multi-family housing is permitted as of right; and
• The AG has legal authority to enforce the MBTA Communities Act by compelling communities to comply; but
• Current agency guidelines for enforcing the MBTA Communities Act are procedurally defective, and therefore are ineffective and unenforceable.

Westwood Minute notes that the practical result of the Court's decision is that while the AG has legal authority to enforce the MBTA Communities Act and compel communities like the Town of Milton to comply with the state's housing production legislation, until the applicable state agency guidelines are re-promulgated with required procedural safeguards in place - such as a fair opportunity for public input - those guidelines cannot be enforced against the Town of Milton and other MBTA Communities.

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AG Andrea Joy Campbell claimed victory, stating, “Today’s decision is a resounding victory for the Commonwealth and a major step forward in our work to address the unacceptably high cost of housing for our residents. 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.

However, while the Court determined that the MBTA Communities Act is constitutional and the AG has the power to enforce it, the Court granted the Town of Milton's request for declaratory judgement in part. The Court noted that it did so because the Executive Office of Housing and Livable Communities (HLC), the state agency that is specifically directed by the MBTA Communities Act to "promulgate guidelines to determine if an MBTA community is in compliance," failed to adhere to procedural and due process safeguards required by the Administrative Procedure Act (APA).

Under the APA, agencies engaged in the rulemaking process must file with the Secretary of the Commonwealth a notice of public hearing, a notice of proposed rulemaking, and a small business impact statement. However, HLC filed its final guidelines on August 17, 2023 without taking any of those steps. The omission was not harmless error as argued by the AG, but strict compliance is required in following the APA, said the Court. The Court referred to APA's legislative purpose of setting minimum standards of fair procedure and uniformity in agency proceedings.

"Because HLC failed to comply with the APA, HLC's guidelines are legally ineffective and must be repromulgated in accordance with G.L. c. 30A, Section 3 [the MBTA Communities Act], before they may be enforced." wrote Justice C.J. Budd in the Court's decision.

Reacting to the Court's determination that HLC guidelines are currently unenforceable, AG Campbell stated, "I applaud the residents, municipal officials, and communities that have already adopted zoning to help relieve our statewide housing crisis. Following the court’s ruling, we will work with the Executive Office of Housing and Livable Communities to assist with the issuance of regulations.” 

In fall of 2024, Petruzziello Properties broke ground on a 160 unit development at 22 Everett Street in Westwood, a development which was the first project submitted by the Town of Westwood for state certification under the housing production plan created to comply with the MBTA Communities Act. The development will have a density of over 15 units per acre. 

Westwood residents voted to create zoning for multi-family housing to comply with the MBTA Communities Act at Town Meeting on May 6, 2024. The zoning need not be contiguous, and the zoned area includes select addresses along Everett Street, Providence Highway, University Avenue, High Street, Brigham Way in Westwood and Allied Drive in Dedham.

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You may also be interested in:

- Town of Milton Defends Against MA AG Suit that Seeks Compliance with MBTA Communities Act

- Select Board Endorses Westwood's First Development Produced in Response to MBTA Communities Act

- Westwood Undertakes Housing Production Plan for 2025

- Majority of Westwood Voters Approve New Areas Zoned for Mixed Use and Multi-family Housing (Updated)