The Massachusetts Supreme Judicial Court recently held oral argument on Milton’s challenge to the law mandating that cities and towns serviced by the Metropolitan Bay Transportation Authority (MBTA) must establish at least one zoning district of “reasonable size” that allows for the development of multi-family housing by right. The outcome of the case, The Attorney General v. Town of Milton, et. al, is critical to the success of the law which is intended to help address the commonwealth’s housing shortage.
The Home Builders and Remodelers Association of Massachusetts (HBRAMA) was one of twenty groups, including three former attorneys general and the towns of Middleborough and Hamilton, that offered their advice to the Supreme Judicial Court through the submission of amicus curiae (“friend of the court”) briefs.
The key issue in the case is whether the Attorney General can compel compliance with the MBTA Communities Act since the statute itself is silent on her enforcement power and specifically mentions the loss of eligibility for certain state grant funds as the penalty for noncompliance. Milton is the only municipality designated as not in compliance with the law, but a host of other municipalities may soon fall into that category if they fail to rezone by December 31.
The HBRAMA signed on to a brief submitted by Citizens’ Housing and Planning Agency (CHAPA) and others in support of the law. The brief argued that the plain text of the law indicates that its provisions are mandatory and that MBTA Communities must comply with them. It recounted for the court the evolution and context of housing policy in Massachusetts, demonstrating the Legislature’s intent to obligate MBTA Communities to zone for as-of- right multi-family development. It noted that in the decades since the enactment of Chapter 40B, Legislature has attempted to address the housing crisis through largely incentive-based policies such as Chapter 40R, the Smart Growth Development and Housing Production Act, that have failed to adequately encourage cities and towns to adopt zoning amendments for housing production.
The brief also cited various reports and recommendations to the Legislature by CHAPA and others that stressed the need for mandatory multifamily zoning and that the MBTA Communities Law is ineffective without such a rezoning mandate.
While waiting for a decision from the Supreme Judicial Court, the Healey-Driscoll Administration announced that it is putting $15 million into a new program offering grants to support local housing and infrastructure projects — but only for cities and towns that comply with the MBTA Communities Law. During a press conference in Somerville, the governor said the new MBTA Catalyst Fund will “help us do what we need to do in this state, which is to build more housing … so that people can afford to stay here.” The fund comes ahead of a critical season for the MBTA Communities Act as a “wave” of additional communities will consider adopting rezoning plans to comply with the law at city and town meetings this fall. It’s also meant to address concerns some local officials have raised about the lack of infrastructure needed for multi-family housing. This new fund is in addition to the $7 million in technical assistance the state has provided to 156 of the 177 MBTA communities. More than half of the 130 communities required to adhere to the law by Dec. 31 have complied.
A copy of the amicus curiae brief filed by CHAPA, the HBRAMA and others, can be downloaded here.