Andrew Mikula

This week, the Massachusetts Supreme Judicial Court will hear the town of Milton’s challenge to the MBTA Communities law’s enforceability. Simultaneously, the Pioneer Institute will publish a detailed report examining the enforcement and potential impact of the law and profiling implementation efforts in select communities.

The law, also known as Section 3A, requires 177 cities and towns to create at least one zoning district where multifamily housing is permitted as-of-right, without age restrictions or discretionary review processes.

Massachusetts’s state constitution explicitly gives the state the authority to restrict local zoning. The statute says that “an MBTA community shall” have a multifamily zoning district, ostensibly meaning that Attorney General Andrea Campbell, who is bringing the case, can force cities and towns to create such a district.

But a central argument made by Milton’s lawyers is that, by specifying the punishment for non-compliance, the text of the law precludes other means of enforcement. In other words, the “shall” language may mean that the state can only enforce the law in ways that are listed in the law itself: namely, by withholding certain grants from non-compliant communities.

It’s unclear whether this argument will hold up in court, and in the past legal experts have described the AG’s case against Milton as “fairly cut and dry.” Tellingly, even the “MBTA Communities FAQs” posted on the Town of Milton’s website say that the “shall” language means that “adopting a compliant zoning district is a mandatory requirement.” But even if Milton prevails in its case, they are fighting a losing battle with the state if their end goal is to avoid complying with the MBTA Communities law.

Many Tools at State’s Disposal

If necessary, the state Legislature could easily circumvent Milton’s “shall” argument by amending the statute to clarify that the AG can force municipalities to comply. Indeed, the Legislature has shown strong support for beefing up Section 3A enforcement and maintaining its original scope.

In May 2023, legislators amended the statute to add to the list of grants reserved solely for communities that comply with the law, a measure that unanimously passed the Senate. In June 2024, during negotiations over the state’s $5.2 billion housing bond bill, senators rejected several amendments that would have created exemptions, reduced requirements, or extended compliance timelines under the law. The original economic development bill that established Section 3A passed both branches of the Legislature by a combined margin of 183-4.

Meanwhile, both Gov. Maura Healey and Attorney General Campbell have repeatedly said the state will go as far as necessary to force all 177 MBTA communities to comply. In a December 2023 radio interview, Gov. Healey even implied that Chapter 70 (school aid) and Chapter 90 (road and bridge improvement) funds for localities could be in jeopardy for non-compliant municipalities.

A Milton case ruling that restricted the state’s ability to enforce Section 3A via judicial means wouldn’t necessarily prevent the state from withholding such local aid funding.

Consequences Beyond Milton

The consequences of this court case go far beyond Milton.

For example, town officials in Holden have said they don’t believe compliance with the law is mandatory, but that they could be forced to reconsider their stance based on the Milton ruling. A dozen other communities have voted down Section 3A compliance plans at their Town Meetings, and at least some elected officials in Foxborough, Billerica and Marblehead seem willing to let the state make the first move to facilitate their compliance.

To the extent that the Milton case is a litmus test for Section 3A’s enforceability in these other localities, the state has little reason to go easy on Milton.

As of this writing, Milton town officials are working towards another MBTA Communities law compliance proposal. More troublesome is that some communities seem to be staking their compliance approach on the outcome of the Milton case, even while Milton itself is not. That’s a recipe for rushed decision-making at best and more lawsuits from the state at worst. Ultimately, it will be in vain.

Whether we’re talking about Milton or its hangers-on, the fact remains that, as long as the Legislature and the Healey administration remain in agreement, all these towns will eventually need to comply with the MBTA Communities law.

Andrew Mikula is the senior housing fellow at the Pioneer Institute in Boston.