MBTA Communities Act opponent John DiPiano is urging Marblehead’s Select Board to pursue a compliance exemption following the state auditor’s recent determination that the housing law constitutes an “unfunded mandate.”
In an email sent Monday to town officials, DiPiano requested the issue be placed on the Select Board’s March 12 agenda, citing the state auditor’s recent ruling regarding Middleborough.
“Given the majority vote last May, I believe it incumbent on the Select Board to seek a compliance exemption given that the state auditor has now determined that Marblehead will have to bear the costs of implementation of this state mandate,” DiPiano wrote.
DiPiano, an attorney who has spearheaded opposition to the law in Marblehead, cited the official mandate determination process on the state website as grounds for exemption.
“More information may be found [here] regarding Mandate Law determinations and ‘Next Steps after the [Office of the State Auditor] determines an unfunded mandate exists,'” DiPiano noted in his email to officials.
The MBTA Communities Act, signed into law in 2021, requires 177 cities and towns served by the Massachusetts Bay Transportation Authority to zone for multifamily housing by right. Marblehead voters rejected a zoning proposal to comply with the law at Town Meeting last May by a 33-vote margin, with nearly 800 votes cast.
The town’s proposed compliance model includes zoning for approximately 58.4 acres across three districts: Tioga Way with 29.8 acres allowing up to 483 units, Pleasant Street with 20.6 acres allowing up to 295 units and Broughton Road with 8 acres allowing up to 119 units. The plan includes about 300 existing housing units that would count toward the town’s zoning obligations.
Select Board Chair Erin Noonan confirmed that the town is evaluating the state auditor’s determination, which could potentially change the compliance landscape.
“We are coordinating a meeting with legal counsel to review what [impact] the state auditor’s position has on the legal landscape, if any,” Noonan said. “The board can take the matter up at a meeting after more information is received and it is possible to have an educated discussion.”
A stretch of an opinion
Attorney Gerry D’Ambrosio, who has worked with several communities implementing the MBTA Communities Act, called the auditor’s determination “a stretch of an opinion.”
“I think the person who wrote that opinion is just unfamiliar with development practices in the state,” D’Ambrosio said. “They conclude early on that just the sheer analysis that a municipality has to do should be funded. I totally disagree with that. A municipality’s zoning authority is mandated by Chapter 40A, and it’s required of every city and town.”
State Auditor Diana DiZoglio defended her office’s determination while clarifying her position on the MBTA Communities Act itself.
“I actually fully support the zoning law, but our office is not able to literally ignore that the local mandate law does require contemporaneous funding be appropriated,” wrote DiZoglio on her X handle. “The law was just ruled a mandate by the SJC. That means it requires a funding mechanism as part of the law.”
But in a statement released Monday, Attorney General Andrea Campbell said that DiZoglio’s interpretation is incorrect.
“High housing costs burden our residents and stifle our economy — and responsible zoning is the solution to this crisis, as most of our communities understand,” the statement reads. “The Auditor’s claim that the MBTA Communities Law is an unfunded mandate is wrong, and, more importantly, this letter has no effect whatsoever on implementation of the Law. If those who oppose housing affordability try to make a similar claim in court, the state will vigorously defend the law, and we intend to be successful, as we have been so far.”
D’Ambrosio characterized the unfunded mandate as a weak argument, analogizing it to police departments adapting to new criminal statutes.
“Just because the Legislature changes or adds a criminal offense, does that mean they have to fund every local police department? Of course not,” he said.
He also disputed the auditor’s concern about infrastructure costs.
“It’s often a mitigation fee that’s placed upon the developer, and you often have the developer not only remediating above ground, they’re remediating underground as well,” D’Ambrosio explained. “To suggest that cities have to do that work … it’s absurd, because that’s just not how it’s done in the state of Massachusetts.”
Housing advocates dismissed the latest challenge as another delay tactic. Angus McQuilken, founding member of the Marblehead Housing Coalition, pointed to opponents’ previous failed legal arguments.
“Last year, opponents delayed our community’s progress on 3A zoning reform, assuring us that the law was unconstitutional and that Milton would win their case,” McQuilken said. “They were wrong, and the Massachusetts Supreme Judicial Court made it clear that 3A zoning requirements are constitutional and enforceable.”
The legal landscape shifted significantly on Jan. 8, when the Supreme Judicial Court ruled that the MBTA Communities Act is constitutional and can be enforced by the Attorney General’s Office.
Following this ruling, the state’s Executive Office of Housing and Livable Communities filed emergency regulations extending the compliance deadline for towns like Marblehead to July 14.
Marblehead’s history with the law has been contentious. When initially presented with compliance options, the town engaged in heated public debates throughout 2023 and 2024. A special Town Meeting last November was contemplated but not held, with officials opting to wait for the SJC’s ruling.
McQuilken characterized the proposed zoning changes as “incredibly modest” with substantial community benefits.
“All we would be doing is changing the zoning rules to allow for multi-family housing by right in parts of Marblehead that already have multi-family housing,” he said. “There is no funding mandate involved, nor any building mandate, and there are no empty lots affected by these changes.”
