Mass. Supreme Judicial Court upholds MBTA housing law but says guidelines are unenforceable
Image | Courtesy of Sam Doran, State House News Service
The John Adams Courthouse in Boston
The state's highest court on Wednesday upheld the controversial MBTA Communities Act as a constitutional law that the attorney general has the power to enforce with legal action, but also ruled that existing guidelines are "unenforceable" because the Baker and Healey administrations failed to roll them out properly.
In a decision with massive implications for the state's effort to build more housing, the Supreme Judicial Court ruled that the zoning reform law does not run afoul of the state Constitution and that Attorney General Andrea Campbell is allowed to sue cities and towns that fail to comply.
However, a third prong to the court's decision found that the Executive Office of Housing and Livable Communities did not follow the Administrative Procedure Act when promulgating guidelines governing implementation of the law by failing to file required notices and impact statements.
The APA requires state agencies engaged in rulemaking to file notice of a proposed regulation with the secretary of state's office and a small business impact statement. HLC "admitted that it failed to take either of these necessary steps," the SJC wrote.
"Because HLC failed to comply with the APA, HLC's guidelines are legally ineffective and must be repromulgated in accordance with [state law], before they may be enforced," SJC Chief Justice Kimberly Budd wrote in the decision.
The MBTA Communities Act requires cities and towns with or adjacent to MBTA service to zone for multifamily housing by right in at least one district. Many communities have already complied with the new mandates, but some including Milton have resisted, with opponents arguing the changes would shift neighborhood character.
Communities have been closely watching the SJC proceedings, expecting the decision about Milton's compliance and the state's response would impact their own rezoning efforts.
Gov. Maura Healey praised the decision as a "major victory for our efforts to increase housing across the state and lower costs," and she said her administration would file new emergency regulations governing the law by the end of the week.
"The emergency regulations will be effective immediately upon filing," she said without elaborating on the compliance deadlines communities will face.
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