Lawyers for the town of Milton and state Attorney General Andrea Campbell made their case to justices of the Massachusetts Supreme Judicial Court Monday morning.
At issue: Does Campbell’s office have the ability to use the courts to force Milton’s compliance with the 2021 MBTA Communities multifamily zoning law?
Campbell maintains that she does, citing in a brief filed with the court that state law that gives the attorney general both a “general statutory mandate” and a “common law duty” to enforce laws when the public interest is threatened. Milton’s lawyers, on the other hand, point to case law and argue that since the legislature didn’t specifically empower the attorney general’s office to sue and also set out a specific punishment for towns that don’t obey, in the form of losing access to a handful of grant programs, Campbell’s office can’t sue.
Milton is also arguing it should also face a lower requirement for the number of new and existing housing units it must allow given what its lawyers claim is a low quality of service on the MBTA’s Mattapan trolley, which forms its link to the Red Line subway.
The case could have significant implications for towns that have yet to pass new zoning in compliance with the MBTA Communities law as fall town meeting season opens. At least 20 groups, including housing advocates and real estate trade groups, have filed briefs with the SJC in this case.
Milton Town Meeting passed a rezoning plan late in 2023, but voters overturned that decision in a town-wide referendum that was partly driven by opposition to additional density in East Milton. Town officials are currently working to develop a back-up zoning plan in the event the town loses the case before the SJC.
And while Milton is so far the only town to not have put in place zoning that complies with the MBTA Communities law by a Dec. 31, 2023 deadline set by the state Executive Office of Housing and Livable Communities for communities with subway service, towns with or near commuter rail service are closely watching the case. They face a Dec. 31, 2024 deadline to establish their multifamily zoning districts and officials in a handful of towns have floated the idea of flouting the law amid local opposition.
To date, 75 of the 177 communities covered by the MBTA Communities law have passed zoning plans with the intent to comply.
SJC justices Monday peppered Goodwin partner Kevin P. Martin, representing Milton, and Assistant Attorney General Eric Haskell with questions as the two delivered their arguments and counter-arguments, with much of their questions boring into whether state officials properly issued the rules implementing the terse language of the MBTA Communities law, and whether state law and past court decisions give the attorney general’s office the right to sue.
While the language of the MBTA Communities law states that state housing officials were to set out “guidelines” to implement the law instead of the more typical and legally stronger “regulations,” Haskell argued that the Executive Office of Housing and Livable Communities conducted a robust effort to get comment on draft regulations from local officials that was comparable to the process for issuing regulations.
“In fact, HLC picked up on that and changed the draft guidelines to reflect Milton’s concerns,” he told the justices, noting that no town has challenged the department’s promulgation method until they fell afoul of the law’s guidelines.
Justices Frank Gaziano and Gabrielle Wolohojian grilled Haskell on whether the case requires the justices to weigh in on specific elements of the Executive Office of Housing and Livable Communities’ guidelines, saying if the SJC found the guidelines to be unenforceable, then it would be meaningless to figure out if Campbell had the ability to enforce the MBTA Communities law through the courts.
Haskell argued that without the attorney general’s ability to enforce compliance with court orders, the few penalties specified in the law are “paper tigers.”
“Without your ability as the AG to enforce this, there’s no real remedy here,” Haskell said.
Justice Scott Kafker put the same topic to Martin, Milton’s lawyer, and sounded skeptical note that despite “dealing with tone of the biggest issues confronting the state,” legislators only named losing access three relatively small grant programs as the penalty for not complying with the law.
“So you’re saying instead of a stick they created a twig?” Kafker asked.
“If the legislature wanted to provide more penalties, they could have,” Martin replied.
The justices did not indicate when they’d rule by but a decision could arrive as late early 2025.