In the week before Town Meeting, this space urged a “yes” vote on what was then known as Article 23 on the warrant, the town’s plan to comply with the M.G.L. c.40A, §3A, a.k.a. the MBTA Communities Act.
Nothing that has happened in the two months since has caused us to reconsider that recommendation as a special election called to challenge Town Meeting’s approval of Marblehead’s §3A plan approaches. Indeed, the case for a “yes” vote has only gotten stronger.
In a follow-up editorial May 14, we noted “before we vote, additional game-changing information could become available.” We were referring to the lawsuits brought by a handful of towns, including Hanson, Middleton, Marshfield and Wrentham, based on the finding of the office of State Auditor Diana DiZoglio that the MBTA Communities Act is an “unfunded mandate,” which were consolidated in the courtroom of Superior Court Judge Mark Gildea.
We wrote, “If Judge Gildea agrees with the state’s argument and dismisses the towns’ cases, it would alter any cost-benefit analysis of undoing Town Meeting’s decision to adopt an MBTA Communities Act compliance plan.”
On June 6, Gildea did just that.
“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.
We continue to see some express disgust on social media with those who suggest, “You can’t fight city hall” — or, in this case, Beacon Hill. We get it. No one likes a mandate, as the saying goes.
But at this point, every town that has tried to fight the MBTA Communities Act in court has lost. Those towns have spent tax dollars on litigation against the state and have nothing to show for it.
If you still support a “no” vote, you are signing the town up to be on the receiving end of an enforcement action from the Attorney General’s Office once the state’s July 14 compliance deadline passes. There would seem to be no magical legal loophole that will spare the town that fate.
Such proceedings could culminate with the AG’s Office asking a judge to order the appointment of a special master to craft a §3A plan, which would then be foisted upon the town. There is no guarantee that plan would be as thoughtful as the one approved by the Marblehead Planning Board after months’ worth of public input. That plan considered the town’s unique character, including existing density in the three proposed districts.
Of course, another consequence of failing to comply would be that the town would be rendered at least temporarily ineligible for certain state grants.
Just recently, Milton — the town that had been at the vanguard of the unsuccessful challenge to the MBTA Communities Act’s constitutionality — read the writing on the wall. After two nights of debate, its representative town meeting approved a §3A compliance plan by a margin of 69-31%.
That proved particularly prudent nine days later when the same Judge Gildea rejected the request of 16 Milton taxpayers for an injunction and granted the motion of the state Executive Office of Housing and Livable Communities to dismiss their lawsuit.
Time may prove the MBTA Communities Act to be an imperfect vehicle to address the lack of housing stock driving the current affordability crisis. State Rep. Richard Wells recently noted that there are no fewer than 40 bills pending in the state legislature proposing revisions to §3A. Residents dismayed about what MBTA Communities Act compliance might mean for Marblehead would be well advised to research which of those amendments hold the most promise for the town and lobby Rep. Jenny Armini and Sen. Brendan Crighton to vote favorably on them.
But as to the best decision in the special election next Tuesday, July 8 — and remember, polls will only be open 2-8 p.m. — the choice is clearer than it has ever been.
The MBTA Communities Act is the law in the Commonwealth of Massachusetts. Voters should affirm Town Meeting’s decision to follow it rather than defy it. Vote “yes” on July 8.
