Balancing Local Control and State Mandates: The Implications of the MBTA Communities Act Ruling

The state’s highest court has affirmed the Legislature’s power to force towns to adopt denser, transit-friendly zoning. In 2021, the Massachusetts Bay Transportation Authority (MBTA) Communities Act (G. L. c. 40A, § 3A) amended the Zoning Act to require that 177 communities near public transit allow multi-family development as of right. (See my earlier blogs on the MBTA Act.) Guidelines written by the Executive Office of Housing and Livable Communities (HLC) set numerical limits and deadlines for the required zoning changes. The Act relied on carrots (threatened withholding of specific state funding) and sticks (enforcement by the Attorney General). On Jan 8, the Supreme Judicial Court (SJC) issued an opinion that the act is constitutional and that the Attorney General may sue municipalities to enforce it. Governor Healey’s Administration was quick to respond with a press release that promised “emergency regulations by the end of this week, consistent with the court’s decision.” Regulations 760 CMR 72.00 were published yesterday and remain in effect for 90 days; public comment and permanent regulations will follow.

In Attorney General v. Town of Milton, the defendant argued that the Legislature unconstitutionally delegated to HLC the power to make fundamental policy decisions – decisions that have long been made at the most local level. The court held that the Legislature had not abandoned its policy-making role by assigning implementation to HLC. Furthermore, the act provided an “intelligible principle” to guide HLC’s exercise of authority and guarded against abuses of discretion by limiting content (like numerical limits for distance from transit and density) and requiring districts of “reasonable” size and consultation with three other State agencies.

Milton also unsuccessfully argued that the Act did not authorize the Attorney General to enforce the law. The SJC held that such authorization was unnecessary. It cited the Attorney General’s broad authority arising from G.L. c. 12, § 10, its general statutory duty to institute “such criminal or civil proceedings” deemed to be for the public interest. The SJC dismissed the argument that a municipality may decline to comply and forgo the identified funding programs. Rather, communities are mandated by the Legislature “to permit their fair share of multifamily housing near their local MBTA stations and terminals” if they “benefit[ed] from MBTA services.”

The municipal defendants did get a small victory: the SJC invalidated the HLC’s guidelines. The Court agreed that the statute required the HLC to “promulgate guidelines,” but it concluded that the HLC’s guidelines were in the nature of regulations and that the HLC did not follow the full process for promulgating regulations under the state Administrative Procedure Act (“APA”). The Emergency Regulations published yesterday reframe the deficient “guidelines” in the form of a regulation, label the former Appendix 1 as “MBTA Community Categories and Requirements” and omit Appendix 2 (a compliance model used to calculate unit capacity). Substantively, they offer additional time to non-compliers: communities that had not submitted their District Compliance application now have 30 days to file an Action Plan and six months to adopt a compliant district. The Court noted that the HLC failed to file the required “small business impact statement” and also failed to estimate the fiscal impact of the proposed regulations on the private and public sectors. Neither the new regulation nor yesterday’s Press Release address fiscal impact.

The new law does not require the construction of affordable housing; it simply reduces some of the traditional barriers to getting zoning approval. Passing a zoning change may not cause any fiscal impact, yet many communities that ultimately allow development in these denser areas will face huge budgetary hurdles. As Tom Mackie noted in his blog post, many municipalities do not have the water and sewer infrastructure to serve the number of new housing units allowed by the required zoning change and see the MBTA Act as an unfunded mandate. While the “emergency regulations” are nearly identical to the existing “guidelines,” which were proposed and revised through a public comment process, the fiscal impact statement may be a wake-up call to taxpayers and the Legislature.