As of this writing, a letter that town officials are expecting has still not yet arrived.
That letter — from the Executive Office of Housing and Livable Communities and Gov. Maura Healey — will make it official that there will be no exemption from the MBTA Communities Act for Marblehead.
The state is doing the town no favors by leaving it in limbo, and it should send the promised letter as soon as possible.
Once that letter arrives, however, the question becomes: What now?
That is a difficult question to answer, as both the Select Board and the town’s new Housing Committee have acknowledged.
The state has continued to offer “technical assistance” to help the town revise a compliance plan that was approved by voters on its second trip to Town Meeting in May, only to be subsequently rejected in a town-wide referendum. But it’s hard to imagine that, at this point, a small tweak — like moving the proposed multifamily zoning from Pleasant Street to, say, Tedesco Street — would suddenly earn a compliance plan universal acclaim.
You can almost sense the dread — to some degree on both sides of the G.L.c. 40A, §3A issue — of rekindling a divisive fight over either a revised plan or a potential “strike three” for the original plan leading up to next May’s Town Meeting.
This is a dynamic that the state Legislature and former Gov. Charlie Baker created by only giving cities and towns subject to the MBTA Communities Act authority to decide where multifamily zoning should go but no say over whether it should be instituted at all.
The prospect of an exemption — far-fetched as it may have been — was held up as a fig leaf to justify opposition to comply with the MBTA Communities Act. Used similarly were the legal cases pursued by the town of Milton challenging the constitutionality of the MBTA Communities Act and the later case, in which nine communities tried to make an “unfunded mandate” argument.
The MBTA Communities law has withstood those legal challenges, yet the mere existence of those lawsuits was a useful tool for Marblehead’s 3A opponents.
We can already see other fig leaves starting to sprout. Rockport resident John T. Kolackovsky, a lead plaintiff in yet another MBTA Communities Act legal challenge, has taken the first steps to getting a question onto the November 2026 statewide ballot proposing to repeal 3A.
Kolackovsky still needs to file nearly 75,000 signatures with local election officials by Nov. 19, and may then need to collect more than 12,000 more signatures next spring. In other words, the ballot measure still faces a long road to get to the ballot, to say nothing of how residents of cities and towns either not subject to the MBTA Communities Act or that have already complied with it would view such a ballot question.
Despite all the murkiness, its mere existence would once again fuel the type of “we might as well wait and see” argument that 3A opponents here have previously used to great effect.
Similarly, one of the declared candidates for the Republican nomination for governor, Brian Shortsleeve, has made known his support for repealing the MBTA Communities Act. Back in July, our local legislators told us that bills like the ones Shortsleeve supports face long odds. But Shortsleeve’s presence in the governor’s race may ensure the waters around 3A’s permanence remain muddy.
Given this landscape, the Select Board may want to consider a different “invitation” from a state official, one that at first blush looks like a threat.
In guidance issued in July, Attorney General Andrea Campbell noted that, while she did not intend to pursue enforcement action against any city or town before Jan. 1, “where a community has demonstrated that it will achieve compliance only when ordered to do so by a court… the AGO may bring a civil enforcement action at any time.”
In its next letter to state officials, the Select Board may want to consider explicitly saying, “In our estimation, Marblehead will only achieve compliance when ordered to do so by a court.”
To be sure, such a statement would be a disappointment to those who have been working hard to educate the community about the MBTA Communities Act and to highlight its benefits, including how it might contribute to the town’s economic health and give longtime residents options to remain in town while downsizing or provide housing options that would allow teachers, firefighters and others to live in the town they serve.
Such a missive would also put the Select Board on the hook for figuring out how vigorously the town should defend the litigation that the town would be inviting. Throughout Marblehead’s arduous wrangling over the MBTA Communities Act, some have suggested that the Select Board has failed to heed the message the “no” voters have been sending. However, the Select Board has never been free to flaunt state law, which 3A — as unpopular as it may be — is. The Select Board also must manage public funds responsibly and not pick unwinnable legal fights. Up until now, not sticking a thumb in the state’s eye has been the only reasonable position.
But we’re now at the precipice of not one but perhaps two more knock-down, drag-out fights, one on the Town Meeting floor, and then another referendum — or, in the alternative, a Town Meeting debate as to whether to first repeal the never-before-used 71-year-old “special act” that made the referendum possible before voting on the merits of a compliance plan.
In other words, we’ve seen this movie before.
At this point, maybe we should just fast-forward to the ending?
The Current Editorial Board
The members of the Current’seditorial board are Bob Peck, chairman of the Current; Virginia Buckingham, president of the Current's board of directors; board member Brian Birke, Current editorial staff member Kris Olson, and Joseph P. Kahn, a retired Boston Globe journalist.
