No one should have been surprised by last week’s news that the Attorney General’s Office had sued Marblehead and eight other towns in Suffolk Superior Court over their failure to comply with the MBTA Communities Act.
As readers no doubt know by now, the five-year-old MBTA Communities Act, passed towards the end of Gov. Charlie Baker’s second and final term, aims to address the state’s housing shortage by requiring communities served by the MBTA to adopt a zoning district or districts in which multi-family housing is permitted as of right.
Marblehead is subject to the law because it is considered an “adjacent community” under the law due to the commuter rail stations in Salem and Swampscott.
At Town Meeting last May, voters passed a zoning plan to comply with the law, only to have that vote undone in a town-wide referendum.
Once its compliance deadline passed last July, Marblehead became a fugitive from the multifamily-zoning law, losing access to millions of dollars in grant funding.
In an advisory last July, AG Andrea Campbell allowed towns in Marblehead’s situation some grace.
But she warned, “By January 2026, however, five years will have passed since the Act was signed into law. By that point, every MBTA Community will have had ample time — and considerable state support — to establish the legally mandated zoning.”
Now, that second shoe has dropped, just as Campbell had promised.
Throughout the lengthy debate over the MBTA Communities Act here, opposition to compliance has taken a couple of forms.
One argument went that the town should not comply until every last legal option was exhausted. Then, in the context of an unsuccessful appeal by the town of Milton, the Supreme Judicial Court confirmed the AG’s power to enforce the act. In a separate suit, other communities — including several of those now being sued by the AG — also failed to convince a Superior Court judge that the law was an unfunded mandate. In September, the Executive Office of Housing and Livable Communities rejected the town’s request for a compliance exemption.
In other words, it has become increasingly clear from a legal perspective that Marblehead’s compliance obligation is not going away. The proposition that the state officials do not have the authority to tell Marbleheaders what to do with their zoning laws or property rights has been rejected at every turn.
Perhaps that realization, along with the desire to remain eligible for state grants, explains why 93% of the communities subject to the law (165 out of 177) — including one-time lead objector Milton — have come into compliance.
The other strain of arguments against compliance has been built on a shaky foundation of misinformation and hysteria. Lawn signs last spring warned of Marblehead becoming “Wonderland” — even though nothing like those monstrous Revere Beach complexes could have been built under Marblehead’s compliance plan.
Indeed, as town officials have repeatedly stressed, adopting an MBTA Communities Act compliance plan would not require anything to be built at all.
We can now see the truth of that statement in other communities. The research firm Boston Indicators recently released a study, which notes that the rate of development spurred by the MBTA Communities Act has been all over the map (pardon the pun). While there are now roughly 7,000 homes in the “permitting pipeline,” roughly 80 percent of permitted units are concentrated in just 10 of the 177 communities subject to the law. More than 1,200 of those 7,000 units are in Lexington alone.
In other words, where communities have prioritized preserving the character of their communities in their compliance plans, they have succeeded in slowing — and even stopping — the number of shovels that have hit the ground.
Now that its focus has shifted to land occupied by Tedesco Country Club, Marblehead’s new compliance plan is very much of that nature. Never say never, we suppose, but the idea that ownership of the club is going to fall into the hands of a developer seeking to build multifamily housing seems remote at best.
If opponents have grossly overstated the number of new units that would be built once Marblehead complies with the MBTA Communities Act, they have also exaggerated the impact of compliance on the town’s budget. No additional police, firefighters or teachers should need to be hired, especially with school enrollment on the decline.
Frankly, Marblehead’s new compliance plan is so contrary to the spirit of each of the MBTA Communities doing its “fair share” to alleviate the state’s housing shortage, it is somewhat surprising that the state seems inclined to sign off on it. But if the state gives its blessing to what would be a “sweetheart deal” for those looking to thwart development, the town may want to grab it and not look back.
Upon learning of the AG’s lawsuit, Select Board Chair Dan Fox said, “It’s in everyone’s best interests for Marblehead to pass its own plan.”
As Fox noted, one way that lawsuit could end is that a judge will order an outsider to draft a compliant local zoning bylaw and then impose it on the town. And that is just one of the potential legal consequences that await Marblehead, if it does not get on the right side of the law.
Marblehead has been playing a game of chicken with the state over complying with the MBTA Communities Act for quite some time. But in all games of chicken, one party eventually needs to swerve to avert disaster.
The attorney general now has her foot on the gas and is driving ahead, with the horsepower of the courts behind her.
It’s your move, Marblehead.
