A trolley on the MBTA's Mattapan Line rolls down tracks in Milton. Photo by Derek Yu | CC BY-SA 2.0

The Massachusetts Supreme Judicial Court upheld the state’s power to sue communities that fail to comply with the MBTA Communities law, but ordered the state to draw up new regulations because of a procedural error.

In the decision issued issued Wednesday morning, the seven SJC justices ordered the Executive Office of Housing and Livable Communities to draw up new regulations and declared the existing ones applying the 177 cities and towns invalid.

The state Executive Office of Livable Communities was responsible for drawing up the regulations for communities setting up the new zoning districts. Regulations included details such as the minimum acreage of districts and minimum number of new housing units that could be developed, based upon factors such as a town’s existing housing stock.

But before issuing its final guidelines in August 2023, the agency failed to file a notice of public hearing with the Secretary of the Commonwealth about the proposed regulations, or a small business impact statement to comply with the Massachusetts Administrative Procedure Act.

“Because HLC failed to comply with the APA, HLC’s guidelines are legally ineffective and must be repromulgated,” Chief Justice Kimberly S. Budd wrote in the decision.

Emergency Regulations Coming This Week

Gov. Maura Healey’s office issued a statement shortly following the decision’s release that called the verdict “a major victory.”

“The MBTA Communities Law is already a success story. 116 communities have said yes to housing and 3,000 new homes are in the pipeline – and those numbers are going to continue to grow. We stand ready to work with Milton and all communities to help them understand how we will all benefit from the MBTA Communities Law and find ways for them to meet their unique housing need,” Healey said.

Healey’s office added that EOHLC plans to file emergency regulations by the end of the week, “consistent with the court’s decision,” that will take effect immediately. Neither the emergency nor proposed new, permanent regulations are expected to be substantially different from the original ones. However, a public comment period will precede adoption of the new permanent regulations.

The legal dispute was prompted by the town of Milton’s rejection of a rezoning plan in a February 2024 referendum. Attorney General Andrea Campbell’s filed suit against the town seeking to force it to rezone areas near public transit for multifamily housing development by-right.

Communities with subway service were given until the end of 2023 to comply; another 130 cities and towns with commuter rail stops and adjacent communities were required to comply by Dec. 31, 2024.

Campbell, Housing Groups Cheer

“Today’s decision is a resounding victory for the Commonwealth and a major step forward in our work to address the unacceptably high cost of housing for our residents. The state’s highest court has made clear that communities subject to the law must allow for additional, responsible development – and that the law is mandatory, not voluntary. I applaud the residents, municipal officials, and communities that have already adopted zoning to help relieve our statewide housing crisis,” Campbell said in a statement. “Following the court’s ruling, we will work with the Executive Office of Housing and Livable Communities to assist with the issuance of regulations.” 

In a statement, Greater Boston Real Estate Board CEO Greg Vasil said the MBTA Communities Act is “the only solution to the state’s housing crisis is through creating more homes. We are thrilled that the Supreme Judicial Court upheld the MBTA Communities Act so that communities can take meaningful action on behalf of their residents.”

Tenants’ rights and civil rights groups also cheered the ruling as a blow against economic and racial segregation.

“This decision comes as a relief for tenants who have been shut out of affluent communities in Massachusetts by decades of exclusionary zoning, and for everyone in Massachusetts who wants to live in a diverse, vibrant, affordable community,” Homes for All Massachusetts Executive Director Carolyn Chou said in a statement.

Judges Reject Milton’s Key Argument

In October, the SJC heard oral arguments in the case. Campbell argued that her office has a broad mandate to enforce laws to protect the public interest.

The town of Milton’s lawyers argued that the attorney general’s office lacks the authority to force a community to comply with the law. They claimed the law lists other penalties for non-compliance: specifically, withholding certain state grants.

Justices rejected the argument.

“The town contends that the Attorney General is not authorized to enforce [the MBTA Communities law] because the act does not so provide. But the Attorney General’s enforcement power is not dependent upon whether a particular statute happens to reference it,” the decision states.

The MBTA Communities law was part of an economic development bill that was signed into law by former Gov. Charlie Baker in 2021.

Verdict Could Have Implications for Needham

Communities with MBTA commuter rail stops, an adjacent communities, faced a Dec. 31 deadline to adopt their own zoning bylaws. At least 110 communities had approved zoning plans by late December, according to the attorney general’s office. Town meetings in Duxbury, Halifax, Hanover, Hanson, Marshfield, Winthrop and Wrentham all rejected proposals in late 2024.

And Needham voters are scheduled to go to the polls in a Jan. 14 referendum on a Town Meeting-approved plan that could see up to 2,500 new homes built in the town over the next 30 years.

Opponents in some communities debating rezoning proposals pointed to the Milton lawsuit as an argument to delay a decision, citing the potential that the court would rule in Milton’s favor and overturn the law.

Justices rejected the argument that loss of state grants was intended as the only penalty under the law.

“[T]he only consequence to an MBTA Community for failing to comply with the act would be the loss of certain funding opportunities. Thus, those communities, like [Milton]… would be free to ignore the legislative decision to require towns benefiting from MBTA services to permit their fair share of multifamily housing near their local MBTA stations and terminals,” the court ruled.

Milton officials had discussed a back-up zoning plan while awaiting the SJC decision.