State Auditor Dian DiZoglio’s claim that the MBTA Communities Act is an “unfunded mandate” has reinvigorated opposition to multifamily zoning in Marblehead, giving critics a fresh argument to resist the act by seeking compliance exemptions.
DiZoglio’s assessment, requested by Wrentham, Methuen and Middleborough, is that the act imposes significant financial and administrative burdens on municipalities without providing state funding for implementation.
Yet, the Select Board should consult with town counsel to decide whether chasing an exemption would be a prudent use of resources.
Massachusetts faces a severe housing shortage that fuels unaffordability. In towns like Marblehead, restrictive zoning constrains housing supply, driving up costs and creating economic barriers.
The 2021 MBTA Communities Act compels municipalities served by mass transit to zone for multifamily housing by right. Marblehead’s proposed response is surgical and modest, focusing on approximately 58 acres across three districts: Tioga Way, Pleasant Street and Broughton Road.
The auditor’s unfunded-mandate ruling may fuel political pushback but does not override state law that our state’s highest court already ruled constitutional. It does not change municipal obligations or provide a long-term escape hatch. The auditor’s findings hold no authority to halt or exempt cities and towns from the law’s requirements forever. Cities’ and towns’ obligations would return full force once the state addresses the unfunded mandate, if in fact one exists.
However, the “unfunded mandate” argument may collapse under scrutiny. Since 2022, the Massachusetts Housing Partnership’s 3A-TA Program has provided nearly $1 million in technical assistance to over 50 MBTA communities. The state also offers compliance models, guidance and various grants. Most significantly, in October, it launched the $15 million MBTA Communities Catalyst Fund, providing up to $1 million per town—funding Marblehead forfeits by resisting compliance.
Claims about financial burden misunderstand development practices, according to attorney Gerry D’Ambrosio. He explained, “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.”
Attorney General Andrea Campbell swiftly rejected the auditor’s claim, calling it “wrong” and legally meaningless. She emphasized that “high housing costs burden our residents and stifle our economy” and pledged to “vigorously defend the law” against challenges.
Some Marblehead residents, led by attorney John DiPiano, advocate pursuing a compliance exemption in Superior Court based on the auditor’s determination. This approach could represent a costly diversion rather than a realistic strategy.
Pursuing this argument in Marblehead is risky and of questionable long-term utility, based in part on the SJC’s earlier ruling and the prevailing political will. The Lawrence Superior Court has already dismissed an unfunded mandate challenge from Rockport residents last year, though that decision is being appealed.
The bottom line is that the auditor’s ruling changes little about the choice the town will ultimately face: Do we want to adopt an MBTA Communities Act plan crafted carefully over months by officials with a full appreciation of the local lay of the land? Or do we want the Attorney General’s Office to impose what might be a different plan on us?
If anything, the auditor’s ruling reinforces the idea that the path forward requires pragmatism. An approach that meets state requirements while preserving Marblehead’s unique character recognizes not just legal reality but also fiscal responsibility.
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.
