The Marblehead Select Board heard passionate arguments from residents both for and against seeking an exemption from the state’s MBTA Communities Act during a standing-room-only meeting at Marblehead High School library Wednesday night.
The law requires Marblehead to create zoning that allows multifamily housing by right across approximately 58 acres in three designated districts. The town rejected the proposed zoning plan at the last May’s Town Meeting by a 33-vote margin. The contentious issue is set to go before Marblehead voters again at the May 5 Town Meeting, albeit it first needs the favorable recommendation of the Planning Board because it is being reconsidered within two years of being rejected.
Attorney John DiPiano, seated in the foreground, listens as Town Counsel Jay Talerman addresses him during the Marblehead Select Board’s packed meeting at the Marblehead High School library on Wednesday, March 12. The board discussed whether the town should seek an exemption from the MBTA Communities Act, with residents voicing strong opinions on both sides of the issue.
With a July 14 compliance deadline approaching, the debate centered on whether the town should join five other Massachusetts communities in pursuing legal action based on the State Auditor Diana DiZoglio’s recent determination that the housing mandate in G.L.c. 40A, §3A constitutes an unfunded state obligation.
Following three hours of heated debate and hearing from a little under 40 speakers, the Select Board members unanimously signaled they needed more time to consider whether to pursue legal action based on the state auditor’s determination. Board members emphasized that they had only heard from town counsel for the first time earlier that evening and felt the rapidly evolving legal situation warranted careful deliberation.
“I am not ready to vote one way or the other here,” said Select Board member Dan Fox. “I want to look at the cost-benefit analysis. I would like to also rely on our attorneys, and it’s great that they are representing some other towns and have the ability to get more input on what is happening.”
Select Board member Moses Grader noted the importance of consulting with legal experts, particularly Town Counsel Jay Talerman, who was present Wednesday and is representing other municipalities on MBTA Communities Act challenges.
“This is really the nature of our deliberative process,” Grader said. “’No means no,’ right, on the one hand, but on the other hand, there’s a lot of information that’s come forward more recently. I think a big part of our job is to really open up the floor to experts like Jay.”
Talerman provided an overview of the legal landscape, explaining that the Massachusetts Supreme Judicial Court has already ruled that the MBTA Communities Act is constitutional and enforceable.
“This isn’t about building housing or the wisdom of the statute,” Talerman said. “The Supreme Judicial Court already decided that Marblehead is subjected to this, and 176 other towns are also subjected to this. That mandate is real, and it’s not going away.”
Talerman cautioned that even successful litigation wouldn’t permanently exempt the town from compliance.
“The purpose of this litigation is not to kill compliance with this statute. None of this is about whether or not you have to comply with the 3A statute,” Talerman explained. “The purpose of this litigation is to get a temporary reprieve while we sort out whether or not the Commonwealth has to pay for it.”
He described a potentially lengthy and expensive legal process that could involve “extensive fact discovery, potential depositions, a lot of lawyering in between debating of motions, developing of expert witness testimony and qualifications.”
“Those things take months, if not years, in a normal cycle of a case that goes to trial,” he said.
Infrastructure and environmental concerns
Attorney and resident John DiPiano urged the board to seek an exemption, arguing that voluntarily accepting the zoning changes would permanently prevent the town from challenging associated infrastructure costs.
“Under the statute, the local mandate law, if this community voluntarily accepts 3A, it is then barred from seeking an injunction and would bear any of the costs associated with infrastructure developing the community, police, fire, deficits with the school system,” DiPiano said.
He emphasized that the state auditor’s determination provides a legal pathway for the town to challenge what he characterized as an unfunded state mandate.
Angus McQuilken, a founding member of the Marblehead Housing Coalition, strongly disagreed with seeking an exemption, calling the proposed litigation “a very expensive wild goose chase” that would waste taxpayer dollars.
“We’ll spend all this money on a wild goose chase with the idea that we’re going to try to get an exemption from the law, which we won’t get, and then we’ll be out of compliance with the law by the deadline,” McQuilken said. “The court has the power to put sanctions on communities that do not comply, and they will do so.”
McQuilken added that the town would lose access to important state grants and ultimately face court-appointed intervention.
“What will the court do after their support order against our community for non-compliance? They will appoint a special master to create a compliant zoning plan, and they will impose that plan on our community without local input,” he said.
Resident Nick Ward argued in favor of creating housing opportunities for middle-class residents rather than focusing on litigation.
“This is housing primarily for the middle class. We’re talking about people with good jobs … these aren’t people who need a hand up or a handout, but they just need to be playing a fair deck,” Ward said. “And at the moment, in this town, we have thousands of properties that are existing, non-conformity. To me, that is not a fair deck.”
Town Meeting’s role in decision-making
Resident Emily DeJoy challenged previous cost assessments presented by town officials and
alleged misinformation had been spread about the financial impact that the state law would have on Marblehead.
“Our town employees and the Democrat Town Committee have been disseminating misinformation regarding the financial impact of this zoning project, particularly the fees that would be imposed on taxpayers if it were to pass,” she said.
She emphasized the importance of respecting the previous town vote.
“It is our responsibility to uphold the overwhelming vote of our community members by advocating for the protection of both their decision and our financial interests, as we — the taxpayers — would ultimately bear the cost should this project move forward,” she said.
While several speakers similarly argued that Town Meeting had definitively settled the matter, others directly challenged this premise, pointing to the town’s established tradition of revisiting contentious issues through successive town meetings as community attitudes evolve and new information emerges.
Marblehead’s decade-long leaf blower debate exemplifies this deliberative process. Since 2009, the town has navigated multiple proposals, rejections and revisions before finally reaching a seasonal ban in 2022.
Even after passage, residents continued to file petitions to both strengthen and rescind the ban as recently as last year. This year will mark the first time in eight years where there is no leaf blower petition on the warrant.
Kurt James, speaking as both a resident and member of the Housing Plan Implementation Committee, emphasized that the town already allows multi-family housing through its Smart Growth Overlay District, adopted in 2011.
“One of the primary recommendations of the master plan is to adopt more flexible zoning that allows multi-family, transit-oriented housing,” James said. “We have two parcels or two areas in town identified as buildable housing as a matter of right, almost identical to 3A right now.”
James addressed concerns about changing town character.
“If we want to preserve a character in town, we’d be providing more opportunities for multifamily,” he said.
Jeanne Lambkin advocated for a careful approach to any legal action. She emphasized that Town Meeting, not just the Select Board, was the appropriate forum for the final decision.
“The vote belongs to the Town Meeting,” she said, stressing the importance of the opportunity for voters to learn from additional public information sessions. “All of these good people should be able to go to those and have the deliberation and ask quality questions and get answers.”.
The legal questions have delayed a vote by the Marblehead Planning Board, which is required if the MBTA Communities Act zoning proposal is to be reconsidered in May.
The Planning Board unanimously voted March 11 to postpone its decision until after hearing the Select Board’s position, scheduling further discussion for its March 27 meeting.
