Her tone may have been conciliatory.
But make no mistake: Behind Attorney General Andrea Campbell’s words lay a hammer.
“Going forward, my job is to work with municipalities to get them into compliance,” Campbell said during a virtual press conference Jan. 8.
Hours earlier, the Supreme Judicial Court had ruled that the MBTA Communities Act is constitutional, and Campell’s office has a right to enforce it.
Campbell then added, “We’d rather work in collaboration than sue a municipality.”
“Sue a municipality” — specifically Milton — is exactly what the Attorney General’s Office had done to bring the issue of §3A’s constitutionality before the state’s highest court. The AG’s complaint against Milton sought an injunction requiring Milton to create a zoning district that complied with the MBTA Communities Act or, in the alternative, have a “special master” appointed to complete that task for it.
Filing that complaint was not an abuse of the AG’s power, the SJC has now said.
Marblehead is part of a distinct minority among cities and towns who have missed their deadlines to comply with §3A.
Of the 130 MBTA communities with Dec. 31 deadlines, 100 were either fully compliant or had achieved “interim compliance” — meaning their compliance applications are under review by the Executive Office of Housing and Livable Communitiesas — of Jan. 2, according to EOHLC’s website.
That leaves in the AG’s crosshairs Marblehead and 30 other cities and towns, including Milton, the only community of the dozen with end-of-2023 deadlines not to have achieved at least conditional compliance.
While it is true that the SJC invalidated EOHLC’s §3A guidelines because the state agency failed to adhere to the Administrative Procedure Act, that aspect of the court’s ruling should not provide any false comfort. EOHLC has gotten right to work issuing emergency regulations, with a permanent set of regulations to follow.
As was discussed at last week’s Planning Board meeting, town leaders will want to take a hard look at those regulations to understand their implications for Marblehead, especially if the state decides to add to the list of grant programs jeopardized by §3A noncompliance, as member Barton Hyte speculated. But the days of thinking that the town will not have to deal with the MBTA Communities Act seem to be over.
As Angus McQuilken of the Marblehead Housing Coalition told the Current, one of the arguments that carried the day at last May’s Town Meeting was that there was wisdom in waiting to hear what the SJC had to say about the MBTA Communities Act. Credit where it’s due: That was an artful dodge, one that allowed Town Meeting voters to sidestep an honest assessment of how well the Planning Board had completed its assignment to develop a compliance plan.
Now, the time to look away is over. By all means, residents should ask any lingering questions they have about Marblehead’s compliance plan. If they give it a fair shake, Fair Housing Committee member Kurt James says residents will find “that the likelihood of dramatically increasing the population or changing the character of the town physically is not high at all.”
No doubt, residents of other cities and towns that were facing Dec. 31 compliance deadlines had concerns about stressing services or changing the community’s character, too. Yet, in more than three-quarters of those cities and towns, residents read the writing on the wall and decided compliance was the better idea, all things considered.
As Planning Board member Marc Liebman noted at the board’s Jan. 8 meeting, there may even be an added incentive to adopt §3A compliance plan in communities like Marblehead, which remain well below the benchmark of having at least 10% of its housing stock qualify as “affordable.”
Given the choice between developments built under Chapter 40B and §3A, most residents would prefer the latter, given their reduced density. But until Marblehead complies with the MBTA Communities Act, Chapter 40B will be developers’ only option.
Residents should use the weeks ahead to engage with the renewed debate over the MBTA Communities Act. A required public hearing before the Planning Board, tentatively scheduled for March 11, will provide an additional opportunity to assess the town’s options in advance of Town Meeting.
But no one should be deluded into thinking that the town’s position has not changed significantly. AG Campbell may have pledged to keep her hammer tucked away in her toolbox for now. But the SJC’s message is loud and clear: If you need to, Madam Attorney General, feel free to swing away.
The Current Editorial Board
The members of the Current’seditorial board are Bob Peck, chairman of the Current; Virginia Buckingham, president of the Current's board of directors; board member Brian Birke, Current editorial staff member Kris Olson, and Joseph P. Kahn, a retired Boston Globe journalist.
