BEHIND THE FRACAS over Milton’s decision to thumb its nose at MBTA Communities zoning law compliance, a legal cudgel looms from the state attorney general’s office. The question of how much housing to build, and where, and who ultimately gets to decide when city and state disagree, is going to be a matter for Massachusetts courts.
As one Milton resident put it at a recent planning board meeting, a state lawsuit is “a wild card.” Attorney General Andrea Campbell just played it.
The attorney general filed suit on Tuesday, asking that the Supreme Judicial Court consider the case and order Milton to comply with a sweeping state law requiring that communities within a certain distance of public transit rezone to allow for minimum amounts of multifamily construction as-of-right.
“The housing affordability crisis affects all of us: families who face impossible choices between food on the table or a roof over their heads, young people who want to live here but are driven away by the cost, and a growing workforce we cannot house,” Campbell said in a statement. “The MBTA Communities Law was enacted to address our region-wide need for housing, and compliance with it is mandatory.”
Milton voters shot down a proposed plan by referendum this month, which would have begun the process of upzoning roughly 150 acres of the affluent Boston suburb. The state Office of Housing and Livable Communities determined that the town is now out of compliance with the ambitious law.
Campbell asks the court to conclude that Milton has failed to meet its obligations under state law and must create a compliant zoning plan within three months of an injunction. If the town is uncooperative, Campbell wrote, the court could consider remedies including appointing an independent special master who would create a compliant zoning plan, fining the town, or denying enforcement of zoning that contradicts the law’s mandate.
A lawsuit was expected after Campbell expressed forceful disappointment with Milton’s decision. In her five-year strategic plan released Monday, Campbell pledged to expand the office’s work in housing equity, “including by ensuring compliance with the MBTA Communities law.”
“We are reviewing the complaint filed by the Attorney General and we look forward to defending the Town,” Milton Town Administrator Nicholas Milano said in a statement after the lawsuit dropped. “The Milton Select Board is meeting tonight to discuss the complaint and the Town’s next steps.”
Housing advocates and lawyers say Milton is poised to learn a difficult lesson about state versus municipal power.
“Essentially, communities only have the ability to come up with zoning laws because the state has granted that authority to communities to do so,” said Rachel Heller, CEO of the Citizens’ Housing and Planning Association. “That means the state can change those laws.”
There is a slight chance that the town may be allowed to reject the statewide zoning mandate by leaning on a general tradition of strong local control. But when local zoning conflicts with clear state mandates – the 2021 law says cities and towns “shall” rezone – state power tends to win out.
“The statute doesn’t say, ‘Hey, if you pass this law, we’ll give you priority for grant funds,’” said real estate development and land use lawyer Matthew Kiefer. “The MBTA Communities act says, ‘Thou shalt upzone if you’re served by the T.’ And Milton is resisting their obligations.”
As the AG’s lawsuit puts it, “It is ‘axiomatic’ that a statute’s use of the word ‘shall’ connotes a mandatory obligation.”
After the referendum, Gov. Maura Healey’s administration moved quickly to yank state funds – like an already-awarded $140,800 grant for seawall and access improvements – contingent on MBTA Communities compliance. Even discretionary spending not specifically listed as tied to compliance may be on the line, according to the administration. The town of Milton conducted an assessment of potential at-risk funding in late January, as the fractious referendum campaign amped up, noting almost $2 million in awarded and applied-for funding hanging in the balance.
Even as she stressed the consequences of non-compliance when speaking to the press on Monday, Healey framed the state as a partner replete with carrots, not just the biggest stick. “I can assure you, though, that our administration is committed to working with communities across the state in getting there and making sure there is compliance,” she said.
Milton’s referendum and the state’s vigorous response is a high-profile flashpoint in a series of local housing battles rippling across the state.
“It was always our position and our expectation that the longer these towns, these defiant towns, were allowed to go unpunished and face limited consequences, there’s going to be a domino effect,” said Jacob Love, staff attorney for Lawyers for Civil Rights, which is involved in litigation against the non-compliant town of Holden. “All of the other towns could be like, well, Holden and Milton are sort of getting away with it. So why can’t we do the same thing?”
Some already are. According to The Sun Chronicle, Wrentham select board members are scheduled to vote on Tuesday whether to sign and send letters opposing the law to local state lawmakers and Healey.
Land use and municipal lawyers’ heads were on a swivel, waiting for the suit. Healey and Campbell have “alluded to” potential litigation, Massachusetts Municipal Lawyers Association attorney Donna Brewer noted at a Monday webinar for municipalities about achieving compliance and the costs of balking.
“It is essential that government actors — be they statewide or local — adhere to the law, given that we demand no less from all within our respective jurisdictions,” Campbell wrote in a letter to Milton following its referendum. “Milton, for example, does not hesitate to act when necessary to compel compliance with its bylaws. As a matter of state law, compliance with the Act is not optional, as we have clearly and consistently advised.”
The AG’s office, she wrote, “will not hesitate to compel compliance with the MBTA Communities Act, through legal action if necessary, should a municipality refuse to comply.”
The attorney general’s office is confident it has the authority to bring a case for declaratory and injunctive relief against a municipality that fails to comply with the housing law. Beyond that, Campbell has signaled willingness to pursue a federal fair housing suit if the zoning restrictions have the effect of excluding people of color, families with children, individuals who receive housing subsidies, people with disabilities, or other protected groups.
In public discussions and meeting minutes, many Milton residents have used the past few months to make a claim that the will of the town should rule, and the state should come to the table and adjust its expectations.
“I feel there’s a mandate that we have to follow,” said planning board member Sean Fahy at a meeting on Thursday. “And that mandate is the number of voters that voted against [the zoning plan]. We have a responsibility to listen to them and to work on their behalf to achieve what they voted for.”
Will of the voters is neither a simple nor bulletproof concept. In Milton, two groups landed in very different places on the zoning reform question. Town Meeting initially approved the controversial rezoning plan with a solid two-thirds majority, only for a Valentine’s Day referendum to throw out the plan by a 54 to 46 percent vote.
Planning board members tried to parse the meaning of yes or no votes in the Thursday meeting, which dragged to almost 11 p.m. The Planning Board and Select Board met Monday in executive session to discuss possible litigation.
It may not matter if the town rejects the plan, for whatever reason.
“It’s just possible that this home rule idea of, ‘Hey, you can’t tell us what to do,’ is more spiritual than legal,” said Kiefer, the land-use lawyer.
Attempts by the state to preempt local zoning usually run into political roadblocks, particularly in states with long histories of local deference. It isn’t popular for legislators to wrench back local powers. But two gubernatorial administrations and the Legislature have already stuck their necks out on the MBTA law.
“As a matter of politics, we have a stronger home rule tradition than the actual law,” Kiefer said. “The powers of the Legislature are broader than most people think they are. We have this really strong home rule ethos here, and it leads many cities and towns to think that they don’t need to listen to the Commonwealth because it’s violating this traditional rule.”
In reality, local control is what the Legislature allows, Kiefer said. Housing policy expert Amy Dain recently wrote much the same.
States determine what and how much power municipalities have over planning and zoning, defined in Massachusetts by mechanisms like the the state’s main zoning law and another powerful state edict, known as the Dover Amendment, exempting certain institutions like religious buildings and schools from local zoning.
Cities and towns have a good deal of leeway to shape their own growth under the state’s home rule structure – the best place and type of density, for instance – but only as long as the local decisions aren’t in conflict with state law. And while the MBTA Communities zoning law imposes requirements for zoning for new, denser housing, it doesn’t actually tell the municipalities precisely what the new zoning should look like.
“There’s a lot of latitude in this law,” Heller said. “So while the law says every community shall have multifamily zoning, communities can use that to advance goals that they have in their own communities. You can use this law to ensure that there’s more foot traffic for local businesses. Many communities have housing production plans, with a stated goal in the community to increase their affordable housing. This is an opportunity to advance that.”
Asking the courts to weigh in – whether through attorney general enforcement, private civil suit, or a suit by a town to get ahead of the whole thing – is a gamble. Just because a community wants a certain outcome doesn’t mean state or federal interests are thrown by the wayside.
Kiefer points to civil rights rulings like court-ordered busing or redistricting of voting boundaries over localities’ objections. In redistricting, a court may instruct the town or city to take another swing or decide to assign the task to a special master.
And just because there are penalties laid out by statute, like loss of grant funding, doesn’t eliminate other sorts of judgements. Campbell’s suit references a dispute over Boston school year lengths, in which forfeited school aid did not preclude the courts from allowing declaratory relief as well.
Campbell asks the court to block enforcement of any non-compliant zoning if the town refuses to follow an order to put forward acceptable zoning. Aside from that, the AG welcomes the court to consider a wide array of remedies, including appointing a special master.
Love, the Lawyers for Civil Rights attorney, said some sort of settlement is possible, though the only outcome likely acceptable to Campbell would be passing a compliant zoning plan.
“Exactly how a judge structures relief is sort of an open question at this point,” he said.
If the town is non-compliant and refuses to rezone, daring the court to enforce the order, advocates suggest a builder’s remedy may be on the table. Usually implemented to make sure that enough affordable housing is being built, as in Massachusetts’s 40B law, builder’s remedies let a developer sue to bypass local zoning rules if the recalcitrant municipality won’t allow the type of housing the state is calling for — in this case, multifamily housing.
Lawyers for Civil Rights is representing the Central Massachusetts Housing Alliance, a Hispanic and disabled Worcester County resident, and a Holden resident in a separate suit against the town of Holden. They are also looking for a declaration by the court that compliance with the MBTA Communities zoning law is mandatory – beyond just the consequences of losing grant funding – and that the state housing office determines municipal standards for compliance.
Superior Court Justice Daniel Wrenn noted Holden’s resistance. “The defendants have failed to comply with [the law],” he wrote, “with town officials stating repeatedly that the town is exercising its option not to comply. The town missed the January 2023 deadline to file an action plan and continues to do so.”
The plaintiffs argue that Holden’s refusal to comply would make it difficult to find affordable housing in the region and cost residents the funding and housing benefits that come from compliance. But they have not pointed to specific injury, Wrenn ruled, dismissing the case in late November for lack of standing.
Lawyers for Civil Rights plans to appeal the ruling, Love said.
Some members of the Milton planning board said last week they were inclined to move forward with a new zoning plan that treats the community as an “adjacent community” rather than its state-classified “rapid transit” – therefore only required to zone for an additional 10 percent of current housing stock rather than 25 percent – even though the housing office explicitly rejected an attempt to reclassify the town in October.
Most of the dozen of “rapid transit” communities that had to submit rezoning plans to the state by the end of 2023 are not technically in compliance, as they haven’t been thoroughly reviewed by the housing office, but by meeting state-imposed deadlines they count as being in interim compliance. Holden and Milton stating an intent not to cooperate, or blowing past their deadline, puts them presumptively out of compliance.
“Compliance with the MBTA Communities Law is mandatory,” said Ed Augustus, Healey’s housing secretary, in a statement. “The Attorney General is keeping her commitment to the people of Massachusetts by upholding the law. It’s the right thing to do for the town of Milton and Massachusetts.”
The state is still signaling an effort to work with the town. Augustus met with Milton’s town administrator last week, and the town could still come back into compliance if it rezones. The attorney general’s office is also offering assistance with reviewing potential zoning plans. But that didn’t stave off an enforcement action intended to make a firm point to wobbling communities.
Douglas Hyne, an attorney and Milton resident, told the planning board he voted to maintain the compliant zoning as an “enthusiastic ‘yes,’ because I kind of didn’t want to be in the position that we are now.”
The town itself should be the first mover and sue the Commonwealth for clarity on both the rapid transit categorization and mandatory compliance, he urged, just days before the AG sued.
“Something’s got to give,” Hyne said, “and as much as I think we’d all like to think that everybody can get together and figure this out over a meeting, it’s not going to happen. There’s too much political capital involved. There’s too many other towns that are looking to see what happens here. And frankly, in a battle of wills, a battle of resources, we’re at a disadvantage.”