EDITORIAL: Vote yes on MBTA zoning

“Truth and common sense prevailed.”

Those were the words of Gloucester City Council President Tony Gross after voters comfortably approved, by a 60-40 margin, the city’s plan to comply with the MBTA Communities Act in an April 24 special election.

We hope truth and common sense will prevail when Town Meeting again takes up our town’s compliance plan Monday night.

To that end, we clear up some confusion about the MBTA Communities Act and the town’s compliance plan.

In some cases, that confusion is understandable. Zoning can be complicated, and it’s hard to envision how zoning rules translate to what, if anything, will be built.

Adding to the confusion are efforts to characterize the consequences of failing to approve a state-mandate zoning plan under the Act.

To get everyone to the same starting point before Town Meeting, we address some popular misconceptions surrounding Marblehead’s compliance with the Act.

Misconception No. 1: “Once we adopt a MBTA compliance plan, developers will rush in to remake Marblehead.”

Opponents of the town’s plan to comply with 3A reference “Wonderland” and Canal Street, Salem. Wonderland is an apparent reference to Revere Beach, where high-end residential complexes complemented by hotel and restaurant projects have sprung up.

Canal Street in Salem is a reference to a large development project that went up seemingly overnight.

The reality is that neither of those projects is an MBTA Communities Act project. Each is in a district with far different zoning than what is proposed for Marblehead’s compliance with 3A.

Projects in Marblehead’s proposed 3A compliance plan can be no taller than 35 feet, with no more than two units per acre. Each unit would also require two parking spaces, and any development has to have 1 foot of open land for every 2 feet of living space.

Marblehead residents already know what these types of projects look like. For example, and by contrast, there are four-unit buildings on State Street and at 182 Pleasant St. that have a density of 15 and 18 units per acre, respectively, and there is a four-unit building on a small (0.113 acre) parcel at 53 Allerton Place, which has a density of 35 units per acre — in other words, it could not be built in Marblehead’s plan to comply with 3A.

Approving the town’s 3A compliance plan would not lead to the construction of structures never before seen within Marblehead’s borders.

Nor would the state’s formula requiring the town to enact as-of-right multi-family zoning that — theoretically — allows for the creation of about 540 new units necessarily lead to that number showing up overnight, if ever.

Let’s look at the town’s experience with Chapter 40B. The state’s affordable housing law was enacted in 1969. In the 56 years since its enactment, Marblehead has only permitted four developments under Chapter 40B, and only two of them have actually been built.

Were the town to approve its 3A compliance plan, a reasonable expectation is that development would occur at a similar methodical pace.

As a result, the 3A opponent’s fear of hundreds of additional cars on the roads or millions in additional expenses is almost certainly wildly overstated. To the extent the town sees any additional costs associated with 3A developments, it will be offset by the additional tax revenue generated by the new construction.

If there is construction resulting from compliance with the Act, however, it would be the type of housing Marblehead currently lacks — places where young families can get their start, where teachers and public employees can live affordably, or where empty nesters can downsize without leaving town.

Misconception No. 2: “Town Meeting already said ‘no’ last year; town leaders are disrespecting that vote.”

When Town Meeting first considered Marblehead’s plan to comply with the Act, it was an open question whether the Act is constitutional. The Supreme Judicial Court has resolved that question — it is.

Town leaders have a fiduciary responsibility to advocate courses of action determined to be in the town’s best interest, financially and otherwise.

Since last year’s Town Meeting, the town has secured approximately $475,500 and is seeking an additional $550,500 in FY25 from grant programs. If the town does not adopt a 3A compliance plan, it would be disqualified from receiving these funds.

And, for FY26, the town is seeking approximately $8.1 million from grant programs for projects like replacing the Village Street Bridge, studying the reuse of the Coffin School, helping commercial fishermen by improving coastal resilience at the Commercial Street Boatyard and generating economic development, including by advancing a project to make more walkable and otherwise improve the area between the Five Corners intersection and the intersection of Washington and Hooper streets. All of that is at risk if the town misses its July 14 deadline to comply with 3A.  

Additionally, the town will likely incur significant legal fees if it is forced to defend against the state’s enforcement actions caused by non-compliance with 3A.

Conversely, the state is providing additional funding for compliance with 3A. Salem was recently awarded a $1 million grant from the MBTA Communities Catalyst Fund to improve water, sewer and drainage infrastructure in its 3A district. A “yes” vote would make the town eligible for future grants from the Catalyst Fund.

Misconception No. 3: “There are lawsuits related to the Act. The current litigation brought by a handful of towns after the state auditor determined that the MBTA Communities Act is an ‘unfunded mandate.'”

That some argue the Act is an unfunded mandate offering the promise of a compliance “exemption” has some short-term appeal. But any such exemption would be of limited duration. Once the Legislature remedies the funding gap, the exemption goes away.

Even the person who opened this door, State Auditor Diana DiZoglio, told members of the Marblehead Select Board that she believes the unfunded mandate issue has a quick fix: “shifting the funding for planning assistance from discretionary grants to a guaranteed budget line item.”

Marblehead has already received grants to cover the cost of creating zoning maps and hiring consultants, which might have otherwise been considered an “unfunded” aspect of the mandate.

Opponents of 3A point to the fact that the towns suing based on the auditor’s letter have cited millions of dollars’ worth of costs related to the MBTA Communities Act that are allegedly unfunded, like the need to hire new police officers and firefighters and upgrade public works infrastructure. However, even DiZoglio believes these to be indirect costs not covered by the law prohibiting unfunded mandates, according to the memo Marblehead Select Board Chair Erin Noonan prepared after her and Select Board member Dan Fox’s conversation with her.

The auditor’s legal interpretation may be immaterial, though. Any relief that results from the ongoing unfunded mandate litigation almost certainly would be granted statewide. Marblehead — and all the other communities subject to the Act — can “free ride” on the efforts of cities and towns suing over the unfunded mandate and share in the spoils of any victory they achieve.

But the point of the litigation is to determine how much more money — if any — the state needs to cough up to fully fund the mandate. It does not seek to invalidate the mandate altogether.

As has been stated often during the protracted debate over the Act, no one likes a mandate. But in the year since the Town Meeting last voted on 3A, the picture on how the town should respond to that mandate has been clarified. The law is constitutional. The Attorney General’s Office has the power to enforce it and impose its own zoning changes without town input. And, the unfunded mandate cases currently pending are unlikely to offer a “get out of jail free” card of any significant duration. Moreover, the town has millions of dollars in anticipated and hoped-for grant funding at stake and would benefit from creating additional housing opportunities for its residents and from the tax revenue a modest stream of new construction would generate.

We urge you to vote yes on Article 23.