SJC rules MBTA rezoning law is constitutional, 'enforceable,' if state redoes rollout

The Massachusetts Supreme Judicial Court ruled Wednesday that the town of Milton can, for now, avoid complying with a controversial state law that requires communities with public transit access to allow for more multi-family housing.

However, the state's highest court makes clear the town's victory may be short-lived. In its ruling, the SJC said the mandate was not "presently enforceable" because state officials failed to follow certain rules on how to issue its guidelines. But once the state rewrites the rules, the SJC said, "We conclude that the act is constitutional and that the Attorney General has the power to enforce it."

Gov. Maura Healey called the ruling a "major victory," saying the law has already had some early success, with 116 communities having agreed to update zoning plans to allow for additional housing. She said the Executive Office of Housing and Livable Communities will file emergency regulations by the end of this week.

The decision offers the state a path to exert its authority over the 177 municipalities affected by the so-called MBTA Communities Act. The law is an effort to address the state's stubborn housing access and affordability crisis, but in a number of towns and cities, the edict has sparked debate over what some say places a burden on municipal services and budgets.

Milton officials did not respond to requests for comment.

Massachusetts Attorney General Andrea Campbell sued the town of Milton last February after residents narrowly voted to reject a rezoning plan to comply with the law. Milton is one of dozens of communities in the state that for months have not passed re-zoning rules that were supposed to be in place by the end of last year under the law.

The state's highest court took up the case last October. The town of Milton argued  that it could not be forced to meet the housing requirements and that noncompliance would result only in a loss of access to certain state grant programs. There are four MBTA stations in Milton along the T's Mattapan Line.

In its decision Wednesday, the court outlined that as the state attempted to issue guidelines to towns and cities, it failed to "file with the Secretary of the Commonwealth a notice of public hearing, a notice of proposed adoption or amendment of a regulation, or a small business impact statement ... ."

The justices' concluded: "the Attorney General has the power to bring suit for declaratory and injunctive relief to enforce [the law] and its guidelines. However, because [the state's] current guidelines were not promulgated in accordance with the [Administrative Procedure Act], we declare them ineffective, and as such, presently unenforceable."

Jesse Kanson Benanav, executive director of the nonprofit Abundant Housing Massachusetts, called the SJC’s decision “desperately needed” to address the state’s housing shortage. He said the ruling “sends the message that the Legislature has the authority to create these laws that create some obligation on communities to do more to make sure we can build the homes that Massachusetts residents need.”

Former Republican Gov. Charlie Baker signed the MBTA Communities Act into law in 2021.

In a press briefing Wednesday, the attorney general said she expects that the SJC ruling to motivate Milton and other holdout communities to comply with the law.

“ We don't see renewing any legal action happening,” Campbell said.  “If anything, we see this as an opportunity to make sure folks are aware of the recent decision that this law is mandatory and that we have the authority to enforce it.”

Campbell said her office would work with the Executive Office of Housing and Livable Communities to assist with issuance of the regulations. She said she's not looking to “pressure” communities into compliance and aims to collaborate and help towns and cities abide by the law.

With reporting from WBUR's Beth Healy.