An MBTA commuter rail train pulls out of the station in Chelsea. Photo by Piper McCorkle | CC BY-SA 2.0
With several towns opting this week to finally get into compliance with the MBTA Communities housing law, some municipalities who claim the law asks too much of them are still looking to the courts and the Legislature for relief.
Milton and Duxbury voters at special town meetings approved zoning that would meet the requirements of the housing law that requires cities and towns served by the MBTA system to rezone to make it easier to build multi-family housing. Ipswich special Town Meeting voters rejected a citizen’s petition to overturn the town’s compliant zoning plan.
Before 69 percent of Milton voters decided to adopt new zoning, state Rep. Richard Wells, of Milton, told Town Meeting that it’s time now for elected officials and the courts to consider the matter.
There are no less than 40 bills on Beacon Hill right now addressing MBTA Communities from a multitude of perspectives, Wells said. It’s likely, he said, that “either judicially or legislatively, there will be changes to MBTA Communities going forward.”
Superior Court Justice Mark Gildea, who is overseeing many of the suits challenging MBTA Communities regulations, dispensed with a core argument and a bundle of nine complaints in early June. Despite a determination from the state auditor’s office that the housing law was an “unfunded mandate” – imposing direct costs on cities and towns without including a proper funding mechanism – Gildea found that the supposed costs were too speculative and noted that there are fundings sources available from the state to help reduce the burden of increasing housing supply.
Gildea is currently considering a lawsuit brought by 16 Milton taxpayers challenging the town’s classification as a “rapid transit community.” The group of residents argue that the Executive Office of Housing and Livable Communities incorrectly tethered the town’s transit status, and therefore its rezoning requirements, to the quaint single-car Mattapan High-Speed Trolley rather than the more distant commuter rail and MBTA subway stations.
Several members of Milton’s Town Meeting referenced a June 11 hearing on the case, with proponents and opponents of the higher density plan suggesting that the judge was sympathetic to their side of the issue.
Brian Kelley, one of the taxpayers who filed suit to challenge classification, played a clip from last week’s hearing in which Gildea asked the state’s lawyer “how’re you going to fit much more in that particular area. What’s the available land?” He added that Milton is not like Middleboro, one of the towns in the suit he dismissed, where there is a “ton of land around the station.” Gildea also asked the state’s attorney whether anyone who wrote the law had visited Milton.
This exchange illustrated, Kelley said, why Milton is different from other rapid transit communities, or even other communities that unsuccessfully protested their obligations before Gildea earlier this spring. The land around the Mattapan Trolley stops, Kelley said, are mostly already residential, while in Middleboro new housing would not be “disrupting an existing neighborhood.”
Town meeting member Douglas Hyne offered a different perspective. The case before the judge turns on whether it is entirely unreasonable for Milton to be classified as a rapid transit community. It feels unfair to classify the town this way, Hyne acknowledged, but the lawsuit isn’t about what’s fair.
Gildea was being respectful of the taxpayers’ the arguments and prodding the state’s attorney, according to Hyne, but he also asked the taxpayer’s attorney, given his ruling the week before, to “tell me why you think I’m wrong, if you want, but I don’t think it’s going have a lot of effect.”
Since the hearing, the housing office has moved to dismiss Milton’s case.
Other cases are working their way through the courts, including an appeal from a group of Rockport residents arguing the housing law was an unfunded mandate and unconstitutional, which was rejected by an Essex County Superior Court judge in Lawrence. The residents did not have standing to sue, the judge said in dismissing the case without ruling on the underlying question.
Gildea is also considering complaints from the towns of Carver and Wilmington. In seeking an injunction, which the housing office opposes, Wilmington argues that the state created an “impossible” and “completely arbitrary” deadline of July 14 to submit a compliant plan. Rather than tailoring the regulations to each town’s characteristics, the suit argues, the housing office is applying a “one-size-fits all” approach that ignores the work done to encourage multi-family housing in the town.
With less than a month left until July 14, the state lists only Middleton, Marshfield, and Halifax as entirely non-compliant. Most towns that oppose the housing law have still submitted possible action plans to the state showing how they may comply in time, with an array still holding out hope for judicial or legislative intervention.
This article first appeared on CommonWealth Beacon and is republished here under a Creative Commons Attribution-NoDerivatives 4.0 International License.
