In a major victory for efforts to increase housing production in the commonwealth, the Massachusetts Supreme Judicial Court has ruled that the controversial MBTA Communities Act is constitutional and that the attorney general has the power to sue cities and towns that fail to comply with the act. The court also ruled, however, that the existing guidelines are “unenforceable” because the state failed to follow the Administrative Procedure Act (APA) when promulgating the guidelines governing the implementation of the law.
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. The administration “admitted that it failed to take either of these necessary steps,” SJC Chief Justice Kimberly Budd wrote in the decision. Because the Executive Office of Housing and Livable Communities (HLC) failed to comply with the APA, its guidelines are legally ineffective and must be repromulgated in accordance with the law before they may be enforced.
Governor Healey announced that HLC will promptly file the guidelines as an “emergency regulation” to be effective immediately. An emergency regulation cannot remain in effect for longer than three months unless during that time the agency gives notice and holds a public hearing as required by the APA.
The court’s ruling came in the case of The Attorney General v. Town of Milton, et. al, in which Milton challenged the law which mandates 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 Home Builders and Remodelers Association of Massachusetts (HBRAMA) was one of twenty groups, including three former attorneys general and two towns, that offered their advice to the Supreme Judicial Court through the submission of amicus curiae (“friend of the court”) briefs. The HBRAMA signed on to a brief submitted by Citizens’ Housing and Planning Agency 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.
While Milton was the only municipality designated as not in compliance with the law, a number of other towns had failed to adopt the required zoning by the deadline of December 31, 2024. Those 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. The HBRAMA’s amicus brief was financially supported by an Emergency Legal Action Grant from the National Association of Home Builders.
A copy of the court’s decision can be downloaded [here].
