The Marblehead Select Board continues weighing options regarding the MBTA Communities Act as the Planning Board prepares to continue discussion of the zoning proposal in an April 8 public hearing at Abbot Hall, 188 Washington St. This comes just days after two Select Board members spoke with State Auditor Diana DiZoglio about her determination that the housing zoning law constitutes an unfunded mandate.
Select Board Chair Erin Noonan and member Dan Fox shared details from their March 17 conference call with DiZoglio during Wednesday’s meeting, highlighting key information that could impact the town’s approach to the controversial housing requirement.
The discussion follows a contentious standing-room-only public forum on March 12 where nearly 40 residents voiced passionate arguments both for and against seeking an exemption from the state law, which requires Marblehead to create zoning for multifamily housing across approximately 58 acres in three designated districts.
According to a memo Noonan prepared after the 45-minute conversation with DiZoglio, the auditor clarified that while the state Supreme Judicial Court has established the MBTA Communities Act as constitutional, the law remains unfunded because costs associated with implementation have been provided through discretionary grants rather than guaranteed funding.
“The State Auditor’s Office only determines whether the law has been funded, not the amount of funding,” Noonan told board members, referencing DiZoglio’s explanation of her office’s limited role in the process.
Fox emphasized how DiZoglio characterized potential solutions to the funding dispute.
“She thought it could be easily remedied by shifting the funding for planning assistance from discretionary grants to a guaranteed budget line item,” Fox said.
The memo states that DiZoglio’s determination focuses narrowly on direct costs such as planning studies and consultants employed to create zoning overlay maps. Infrastructure requirements and potential staffing needs resulting from population growth would likely be classified as indirect costs not covered by the unfunded mandate law. These could include sewer expansions, road improvements, or increased school capacity — expenses that arise if new housing leads to population growth. In contrast, direct costs are limited to compliance activities like creating zoning maps and hiring consultants. Notably, these direct compliance costs have already been covered through existing grants to Marblehead,.
Fox noted that DiZoglio compared the situation to Massachusetts’ early voting mandate, where the state eventually provided direct funding after a similar determination.
“She referenced that early voting had been determined an unfunded mandate in the past, and that when they did that, then Beacon Hill basically stepped in and gave us money,” Fox said. “She said that was how it was remedied.”
DiZoglio’s office cited a “zero impact” financial statement submitted by the Executive Office of Housing and Livable Communities (EOHLC) as a core reason for her ruling. The memo called this “internally inconsistent,” given the millions in technical assistance already awarded to towns.
This approach contrasts with the heated March 12 forum, where residents like attorney John DiPiano urged immediate legal action while Angus McQuilken, a founding member of the Marblehead Housing Coalition, warned against what he called “a very expensive wild goose chase.”
Board member Moses Grader emphasized the importance of continuing to gather information.
“We’ve got a lot of information since the last meeting,” Grader said. “One is a ruling by the Supreme Court, determination from the auditor. And I think this memo is very, very important and well done for getting information, reaching out to the auditor, putting it in a memo.”
Town Administrator Thatcher Kezer clarified distinctions between compliance costs and potential future infrastructure expenses, noting Marblehead had received technical assistance when the town drew its MBTA district.
“The grant we received paid for everything,” Kezer said, explaining that covered costs included analysis work performed by consultants to ensure proper zoning densities across the designated acreage.
The issue remains particularly urgent as Marblehead faces a July 14 compliance deadline. Failure to comply could result in sanctions, including loss of grant eligibility and court intervention. According to housing advocates, courts could appoint a special master to create and impose a compliant zoning plan without local input.
The zoning proposal, rejected by a 33-vote margin at last May’s Town Meeting, is scheduled to go before voters again on May 5, pending favorable recommendation from the Planning Board. Because the proposal was previously defeated, state law requires a two-thirds vote at Town Meeting unless the Planning Board gives it a favorable recommendation.
Town Planner Alex Eitler, per the Planning Board’s request, will host two more information sessions on the proposed MBTA zoning.
An overview presentation is scheduled for Monday, March 31, at 7 p.m. at Abbot Hall. A public workshop and Q&A session will follow on Monday, April 7, from 2 to 4 p.m., also at Abbot Hall.
Eitler said both sessions aim to provide residents with a clear, factual overview of the proposal and its potential impacts ahead of the May Town Meeting.
