Massachusetts’ highest court heard arguments Monday in a case that could reshape housing policy across the state, with significant implications for communities that have resisted new zoning mandates, including Marblehead.
The Supreme Judicial Court is weighing whether the attorney general can force towns to comply with the MBTA Communities Act, a bipartisan law passed in 2021 requiring cities and towns near public transit to zone for denser, multifamily housing or face penalties.
The case stems from Milton’s refusal via referendum to adopt zoning changes required by the law. Attorney General Andrea Campbell sued the town earlier in the year, arguing she has broad authority to enforce the statute. Milton contends the law provides only for withholding certain state grants as a penalty for non-compliance.
The court’s eventual ruling could determine whether dozens of resistant communities face legal action or can maintain current zoning without any penalty beyond the loss of state funding. It’s being closely watched in places like Marblehead, where voters in May rejected zoning changes to comply with the law.
Justices pressed lawyers from both sides on the limits of state power over local zoning and the adequacy of the law’s enforcement mechanisms, extending the hearing beyond the usual 30-minute limit.
“This is significant legislation addressing a societal crisis, and without your ability as the AG to enforce this, there’s no real remedy here,” Justice Frank Gaziano said to Assistant Attorney General Eric Haskell, restating the AG’s position.
Haskell argued the law creates a clear mandate towns must follow regardless of local votes. Expanding on the state’s position, he explained, “Our view is that the Legislature included [the loss of state grant money] in [the law] so that municipalities would know there is going to be a concrete consequence of not complying, and it’s going to be automatic, and it’s going to be swift, and it’s going to be certain. But it does not in any way take the place of the power of the attorney general to enforce this mandatory state law.”
But Milton’s attorney, Kevin Martin, said the Legislature intended only limited financial penalties, not broad enforcement through lawsuits.
The case has major implications for Gov. Maura Healey’s efforts to tackle the state’s housing shortage. Healey has made the MBTA Communities Act a centerpiece of her agenda, arguing it’s crucial for economic growth and housing affordability.
The oral arguments come just days after Healey announced the creation of a new $15 million fund to support housing development in communities complying with the MBTA Communities Act. Marblehead is not eligible for this funding, after rejecting zoning changes.
Currently, Marblehead stands among the 101 out of 177 communities that have yet to adopt the changes required by the Act, according to WBUR reporting.
In Marblehead, the debate has inflamed passions and dominated local politics for months. The Select Board on Sept. 11 decided not to call a special town meeting to reconsider May’s vote rejecting zoning changes.
But supporters argue non-compliance could prove costly. Marblehead risks losing access to 14 state grant programs and faces potential legal action from the attorney general.
The town has $285,000 in pending FY25 grants through MassWorks and Livable Communities, but it is uncertain what happens when the compliance deadline of Dec. 31 passes. Legal fees for fighting a lawsuit from the attorney general could range from $25,000 to $75,000, according to the town.
Housing advocates say the law is needed to spur construction of apartments and condos near public transit. Critics contend it infringes on local control and could alter community character.
At the hearing, several justices questioned whether withholding grants provides enough incentive for towns to comply, given the law’s goal of addressing the housing crisis.
The court also grappled with the law’s impact on local democracy, a key issue in places like Marblehead where voters have rejected zoning changes.
“You’re not arguing that the board of selectmen did anything wrong, are you?” Justice Gabrielle Wolohojian asked Haskell. “It seems to me that what you’re actually arguing is that, it seems to me you’re almost taking on the right to the franchise of the citizens of Milton.”
In this context, “franchise” refers to the fundamental right of citizens to vote and have their votes respected in matters of local governance. Wolohojian’s question suggests concern that enforcing the MBTA Communities Act might override the democratic will of Milton’s residents, who exercised their voting rights to reject zoning changes. This judicial scrutiny highlights the tension between state-level housing goals and the principle of local self-governance, a core issue for towns like Marblehead facing similar decisions.
These questions highlight the central tension many communities face: whether to bow to state pressure or stand firm on local autonomy.
John DiPiano, a Marblehead attorney and leading opponent of the MBTA Communities Act, described the justices as “white hot” in their questioning, particularly of the Attorney General’s office.
“The panel appeared to indicate that ‘guidelines’ are normally ‘background’ provisions,” DiPiano said. He noted that justices used phrases like “agency run amok” and “guidelines improperly implemented” when probing the import of the fact that the Executive Office of Housing and Livable Communities did not utilize the procedures outlined in state law Chapter 30A, which agencies are required to follow when implementing regulations. Justices questioned whether “guidelines” were the functional equivalent of regulations and whether EOHLC skipped an important step by not exploring their impact on small businesses, as Chapter 30A requires.
More generally, DiPiano interpreted the justices’ tone as skeptical towards the AG’s position.
“While I really try to stay away from predicting judicial outcomes based on oral arguments, my instinct is that this was not a good day for the MA AG or Healey-Driscoll,” he wrote in an email. “My instinct is that most of this panel suspects that there is a palpable element of government overreach by the executive branch at hand.”
The justices normally render their decisions within 130 days.
