Two Select Board members suggested on Aug. 28 that they expect the town will receive a letter from the state soon formally rejecting its request for an exemption from the MBTA Communities Act.
The comments from Chair Dan Fox and member Erin Noonan came one day after they had the chance to discuss that request with Edward M. Augustus, the state’s housing secretary, who had come to town to tour the Marblehead Housing Authority’s property on Broughton Road, which is being redeveloped through an agreement with Winn Development.
When Noonan and Fox seized the opportunity to ask him about the exemption request, he “emphatically stated” that the request’s prospects were dim, Noonan reported. Augustus said that his Executive Office of Housing and Livable Communities had never granted an exemption from compliance with the MBTA Communities Act and had “no interest or plan to do so in the future,” Noonan said.
Fox indicated that the town would receive the rejection letter once the EOHLC and the governor’s office finished revising it.
Augustus had already sent the town a letter on Aug. 1, officially confirming that the state considers Marblehead noncompliant with G.L.c. 40A, §3A.
Augustus directed the town to the advisories that Attorney General Andrea Campbell had issued in March 2023 and this past July. The latter contained Campbell’s pledge to forgo “legal action this summer or fall against noncompliant communities that are making demonstrable and good faith efforts towards compliance.”
She added, “By contrast, where a community has demonstrated that it will achieve compliance only when ordered to do so by a court, and the pertinent deadline has passed, the AGO may bring a civil enforcement action at any time.”
State Housing Secretary Edward M. Augustus, center, meets Aug. 27 with members of the Marblehead Select Board, Housing Authority and other town leaders. COURTESY PHOTO
Some grants still murky
In response to a question from member Moses Grader, the board discussed the lingering uncertainty around the magnitude of the grant funding the town has already begun to lose as a result of its noncompliance with G.L.c. 40A, §3A.
Noonan indicated that, broadly speaking, any grant to which the town has a right, like Chapter 70 education aid and Chapter 90 aid to repair and improve local roads and bridges, should be safe. But discretionary awards were a whole different matter, she said.
The town is still waiting for a definitive answer to the question of whether it would be able to compete for grants beyond the initial automatic one under the state’s Green Communities initiative, Noonan said.
But she had been led to believe that the eight applications that the town had submitted through the state’s Community One Stop for Growth portal would be dead on arrival.
The Community One Stop for Growth combines 12 of the state’s most popular community focused economic development and housing grant programs into a single application portal and collaborative review process, according to its website.
“There’s no one answer from the state,” Town Administrator Thatcher Kezer said, noting that the town has been seeking answers from “multiple agencies [about] multiple programs.”
At a minimum, 3A compliance is part of the “scoring system” for discretionary grants, putting the town at a disadvantage when competing with cities and towns that have complied, Fox said.
‘Help,’ but only to a point
Member Jim Zisson noted that Campbell and other state officials have indicated, “We’re here to help your community.”
“What does that actually mean?” he said.
Zisson expressed hope that it might mean that there could be some flexibility with the town’s compliance requirements. “Short of some relief,” he suggested that a request that the Planning Board bring forward a substantially similar plan to the one that had been defeated in a town-wide referendum would be doomed to fail.
However, Fox said that it is pretty clear that any help from the state would come only in the form of technical assistance in developing a zoning plan to meet the law’s requirements rather than any leniency with the law itself.
Board members briefly discussed the town of Middleborough, which brought suit against the state in late February and then was able to settle that lawsuit a month later by agreeing to increase its stock of multifamily housing units by expanding its Chapter 40R Smart Growth Zoning Overlay District. That settlement remains subject to a vote at a special town meeting on Oct. 6.
Fox noted that Middleborough is the “only one” among the cities and towns subject to the MBTA Communities Act that had achieved anything by resisting compliance, and only due to some unique circumstances.
As for Marblehead, the message from the state is clear, Fox said.
“The message is that we do not want to have to put the hammer down, but the hammer is coming down very soon,” he said.
Seeing the rejection of the exemption request in writing will be “step one,” Fox added.
“As we know, we are in a precarious situation,” he said.
