A Massachusetts Superior Court judge on Friday rejected claims by nine towns that the state’s MBTA Communities Act constitutes an “unfunded mandate,” delivering a significant blow to municipalities seeking to avoid compliance with the controversial multifamily housing law.
The act requires 177 cities and towns served by or adjacent to MBTA transit to create zoning districts where multifamily housing can be built “as of right” without special permits, with requirements varying based on each community’s size and transit access.
Town Meeting approved Article 23 in May by a 951-759 vote, designating three areas for multifamily overlay zones. However, attorneys John DiPiano and Yael Magen successfully petitioned for a special election to potentially overturn that vote, gathering more than 1,200 signatures in a single weekend. That vote will take place on July 8.
Marblehead Select Board chair Erin Noonan said the ruling vindicates officials who warned against seeking exemptions from the law.
“This is the outcome we always expected and shows that calls to just ‘file a compliance exemption’ were never going to resolve this,” Noonan said. “I hope that voters will ratify the sensible plan adopted by Town Meeting so that we can turn the page, come together as a community, and focus on the pressing issues facing our town.”
The decision comes as Marblehead faces its own ongoing battle over MBTA zoning compliance.
The 40-page ruling by Superior Court Justice Mark Gildea denied preliminary injunctions sought by the towns of Duxbury, Hamilton, Hanson, Holden, Marshfield, Middleton, Wenham, Weston and Wrentham, while also dismissing their complaints challenging the law on constitutional and financial grounds.
“This decision has confirmed once again that a law passed with bipartisan support, upheld as constitutional by the state Supreme Court and agreed upon at Town meeting by a wide margin does not need to be deliberated any further,” reads a statement from the Marblehead Housing Coalition. “This decision upholds the reality that voting yes on July 8 is the right path forward for Marblehead.”
Unfunded mandate claims rejected
Central to the court’s ruling was the determination that Section 3A of the state’s zoning law does not impose direct costs on municipalities that would require state funding under Massachusetts’ Local Mandate Law.
“The anticipated possible costs alleged by the Municipalities … are indirect and, therefore, Section 3A does not constitute an unfunded mandate,” Gildea wrote in his decision.
The towns had argued they would face substantial infrastructure costs to accommodate new housing development, including expenses for water systems, public safety services, schools and roads. However, the court found these projected costs too speculative to warrant state appropriations.
“The Municipalities have neither pled specific costs for anticipated infrastructure costs, nor provided any specific timeline for anticipated construction projects,” the ruling stated.
Massachusetts Attorney General Andrea Joy Campbell issued a statement after the judge granted her requested motions to dismiss nine lawsuits filed by the towns.
“Today’s decision is a win for Massachusetts and so many of us affected by the statewide housing crisis,” said Campbell. “We thank the overwhelming majority of communities that have already come into compliance with the law, and we look forward to working with the remaining communities to bring them into compliance.”
DLM determination overruled
Meanwhile, the court’s decision explicitly rejected a February determination by State Auditor Diana DiZoglio at the state’s Division of Local Mandates that Section 3A constituted an unfunded mandate. The DLM had concluded the law “imposes direct service or cost obligations on municipalities by the commonwealth that amount to more than incidental local administrative expenses.”
However, Gildea ruled the court was not bound by DLM’s determination, citing precedent from a 1994 Supreme Judicial Court case that similarly overturned a DLM finding.
“The DLM’s determination was flawed as a matter of law, because Section 3A is not an unfunded mandate,” the ruling stated.
A key element of the court’s reasoning centered on the distinction between requiring zoning changes versus mandating actual construction. The judge noted that Section 3A requires municipalities to create zoning that allows multifamily housing “as of right,” but does not compel construction of any specific number of units.
“Section 3A and the related regulations do not compel construction. They merely encourage it,” Gildea wrote, citing state regulations that explicitly state the law should not be interpreted as “a mandate to construct a specified number of housing units.”
The court also noted that grant funding programs specifically designed to help municipalities with infrastructure improvements are available through the MassWorks Infrastructure Program and HousingWorks Infrastructure Program.
Implications for Marblehead
Despite Town Meeting’s approval of Article 23, the special election petition process launched by DiPiano and Select Board candidate Magen – both of whom the Current has reached out to — could still overturn the zoning changes.
For a referendum to succeed in overturning the zoning, two conditions must be met: a majority of voters must support repeal, and the number of “no” votes must equal or exceed 20% of Marblehead’s registered voters — approximately 3,315 votes based on current registration.
Moreover, the town must submit its final compliance package under the MBTA Communities Act by July 14, according to emergency regulations issued earlier this year. Failure to comply could result in loss of eligibility for various state grant programs.
Friday’s decision comes months after the Massachusetts Supreme Judicial Court ruled in Attorney General v. Milton that the MBTA Communities Act itself is constitutional and enforceable, though that case invalidated earlier state guidelines for procedural reasons.
“The powers of a town and of its town meeting, and the very existence of the town, are subject to the will of the Legislature,” Gildea wrote, citing established precedent about municipal authority.
Leigh Blander contributed reporting to this article.
