BOSTON — Questions of local control and the power of voters to make decisions on behalf of their municipality, the extent of state’s enforcement authority, and the differences between “guidelines” and “regulations” were aired Monday as the Supreme Judicial Court took up the attorney general’s closely-watched push to force Milton to comply with a 2021 zoning law.
The state’s highest court took the case on because of the new and important public policy issues it deals with, namely what legal obligations towns have and what enforcement actions the state has at its disposal under the so-called MBTA Communities Act, which mandates multi-family zoning by right in transit-adjacent communities. The provision has been held out as a crucial tool in the state’s work to address a housing accessibility and affordability crisis that state leaders say threatens Massachusetts’ economy and standard of living.
Attorney General Andrea Campbell sued the town of Milton and its building commissioner in February, shortly after voters approved a referendum put forward by residents worried about the potential for excess development under the zoning reform plan that Milton Town Meeting initially approved last year. The state is seeking a court order that would force the town into compliance.
But the town, where voters were heard at the ballot box earlier this year, contends that the only punishment for noncompliance is the loss eligibility for certain grant programs that are spelled out in the statute. Milton has already lost some grant funding, and the town government argues that the attorney general should not have the power to take additional enforcement action against it.
There are 177 communities, including all on Cape Ann, that either have or will have to rezone to encourage multi-family housing because they either host or are adjacent to MBTA service. State lawmakers wove the mandate into a 2021 economic development package at the last minute with little discussion, and the provisions have become a major piece of the state’s strategy to encourage badly needed housing production.
Most municipalities in the eastern part of the state are closely watching Milton’s case before the SJC. The Boston suburb is so far the only town to have missed its final deadline to comply. But dozens of other communities face an end-of-2024 deadline to come into compliance and some have been considering referendums to similarly ignore the law.
The justices of the SJC did not offer a timeline for their decision Monday. The court says that most cases are generally decided within 130 days of oral arguments, which would mean by mid-February for cases heard Monday.
Powers of the attorney general
Over the course of nearly an hour, six of the seven SJC justices — Justice Bessie Dewar, the former state solicitor, did not participate — heard from both sides and were active in their questioning. The primary line of argument related to Campbell’s powers to enforce the law beyond what is specifically called for in the law.
“Towns can’t vote not to comply with state laws, right? So if you have the authority in the AG’s office … then the question is, are the remedies exclusive? That’s really the only issue we have,” Justice Scott Kafker said Monday.
Assistant Attorney General Eric Haskell argued that the remedies detailed in the law are not exclusive, and agreed with Kafker’s contentions that the loss of grant funding is largely a “paper tiger” and that “without your ability as the AG to enforce this, there’s no real remedy here.” Haskell said that the last time Milton got any money from one of the specified grant programs was $1 million it received through the MassWorks program in 2012.
“Our view is that the Legislature included that in there so that municipalities would know there is going to be a concrete consequence of not complying, and it’s going to be automatic, and it’s going to be swift, and it’s going to be certain,” he argued Monday. “But it does not in any way take the place of the power of the attorney general to enforce this mandatory state law.”
Kevin Martin, an attorney from Goodwin Proctor who represented Milton before the SJC on Monday, started his arguments by questioning Campbell’s authority to even bring the lawsuit against Milton in the first place. He also emphasized to the court that the Legislature could have imposed whatever consequences it wanted on non-compliant towns, but opted to only write loss of grant eligibility into the law.
“At the end of the day, again, the Legislature gets to decide the value here. And we know that they’re laser focused on what the remedy should be because, originally, the statute provided for three sources of grant funding to be withheld if you weren’t in compliance. The Legislature went back a couple of years later and increased that to four. They’re focused on this issue. And they’ve decided that, weighing all of the different values that are at stake here, that’s the appropriate remedy,” Martin argued. “If they wanted to provide for something more, they could have. They could have provided for more financial penalties, they could have provided for injunctive relief, as they have done, for example, in Chapter 40B, the fair housing statute.”
Campbell was not the only one to have their powers called into question Monday. Justice Gabrielle Wolohojian twice pressed Haskell on the notion that the state was seeking to punish the town for something that voters approved through a democratic process.
Wolohojian said she ordinarily thinks of a town as acting through its board of selectmen. And while Haskell said he’s “afraid it’s a good deal more complicated” than that in this instance, he agreed with Wolohojian that the state is not arguing that Milton’s select board did anything wrong.
“How is it that you’re not, in this case, actually trying to take on the right of the residents of Milton to exercise their franchise?” Wolohojian asked the assistant attorney general.
Haskell responded by pointing to a 1943 case involving the town of Hudson. The Legislature passed a special wartime act effectively requiring cities and towns to treat their drinking water in a certain way so as to defend against sabotage, he said. Hudson residents at town meeting rejected a bid to buy the treatment equipment needed and the attorney general brought an action against the town to force its compliance.
“The town’s defense was, ‘town meeting does its thing. It’s a democratic process, we can’t control it.’ And this court’s opinion was very clear and very strong that even where a state law mandate is subject to a political process of adoption and implementation like that, it’s still a mandate and the town still needs to follow it, and the court still has equitable remedies available to it to compel the town to comply with that mandate,” he said.
Guidelines vs. regulations
The high court also spent time unpacking Milton’s argument that it is not in violation of the MBTA Communities Act because the guidelines the Legislature required the Executive Office of Housing and Liveable Communities to produce were not properly promulgated. The law itself mandated EOHLC to “promulgate guidelines to determine if an MBTA community is in compliance with this section,” and Milton argues that the guidelines are really regulations that should have been promulgated following the specific process laid out in Chapter 30A.
Wolohojian and Justice Frank Gaziano both raised with Haskell the possibility that the court could decide that the guidelines as issued by EOHLC are unenforceable because they were not put into effect using the proper process. Wolohojian pressed Haskell on how the state’s argument that Milton violated the law when it missed its deadline to comply would be affected if the court were to effectively dismiss the guidelines that created the deadline.
“I think if the decision from this court comes out in a way that HLC needs to repromulgate the guidelines, it would be HLC’s choice in that situation what to do by way of deadlines. I think it’s safe to assume they couldn’t specify a deadline in the past,” he said. Haskell argued, though, that the court would still need to settle the first question of the AG’s authority to force the town into compliance.
Wolohojian didn’t entirely agree. She said that the enforcement question “wouldn’t apply to Milton, though” if the guidelines were deemed unenforceable.
“If I understand correctly, the point at which Milton, in your view, violated the statute was when it didn’t enact a zoning plan by a certain date. But if the certain date only comes from the guidelines and the guidelines need to be done over, then what is there to enforce against Milton?” she asked.
Kafker questioned just how much latitude the court should give Milton and its challenge of the details of the state’s guidelines.
“I understood if you submitted a zoning regulation that was different, that didn’t comply with two provisions in those guidelines, that’s a different question. But you just don’t submit a zoning regulation at all, you just say ‘we don’t have to do it.’ Do we have to get into the niceties of all of those guidelines?” he asked Martin. The justice added, “I don’t know if you get to challenge everything in them.”
Looking for legislative intent
“You both have briefed this intensely, but the only discussion of legislative history is in another amicus brief. Is that because the legislative history is not informative here?” Kafker asked. “I mean, given how significant this legislation was, I assume there was debates and other…do we have any legislative history?”
The idea of mandating multifamily zoning by right in transit-adjacent communities had been floated in standalone bills, but what is now known as the MBTA Communities Act originated as three paragraphs within an 11-page amendment to an economic development bill.
On July 29, 2020, senators added the three-paragraphs to an economic development bill as part of an amendment titled “Housing Reform” filed by Sen. Brendan Crighton of Lynn, who was the only senator to speak about the change before the Senate adopted it on an unrecorded voice vote.
“This amendment also encourages the creation of transit oriented development by requiring communities with rail, subway, ferry or bus stations to have at least one multifamily housing zone permitted as of right,” Crighton said at the time. “This is a modest requirement for the municipalities with public transportation at their doorstep.”
The House and Senate then spent months in private negotiations over the economic development bill. At around 2:30 a.m. on the final night of the term in January 2021, top Democrats rolled out a compromise bill that retained the Senate-approved MBTA Communities Act. Gov. Charlie Baker signed it into law nine days later.
Haskell told Kafker on Monday that there is “a little bit of legislative history” and pointed to Crighton’s remarks as well as a press release from Senate President Karen Spilka that similarly mentioned the mandatory nature of the new zoning requirement. But he conceded that there is no clear expression of the Legislature’s intent around enforcement actions.
“The significance of both of those is that they confirm that this is a requirement. This is mandatory. This is something that towns must do. Both of those legislators spoke about about requiring towns to zone under this legislation,” he said. “I haven’t seen anything to address the remedy issue, your honor.”