Given the rancor of the last two years, it’s been strange to see how little discussion there has been about the town’s latest attempt to comply with the MBTA Communities Act. That silence stands in stark contrast to the voluminous debate over a tiered set of Proposition 2 1/2 overrides town leaders are expected to propose at Town Meeting.
The new compliance plan, which is Article 4 on the town meeting warrant, includes two multifamily districts: Broughton Road and the Tedesco Country Club site. The state has granted the plan its initial approval.
At a March 10 public hearing, no one spoke either for or against the plan, which the Planning Board unanimously approved for placement on the warrant.
Weeks earlier, resident John DiPiano, who led efforts to overturn last year’s Town Meeting approval of a different compliance plan at the ballot box, told the Current he was unlikely to seek another referendum vote, if a majority of voters said “yes” to Article 4.
Do all these tea leaves mean that it will be smooth sailing for Article 4? Only time will tell.
If it is, it will be a credit to Select Board Chair Dan Fox and Planning Board member Marc Liebman, who responded to last year’s defeat by sitting down with critics of the law and to try to fashion a more palatable compliance plan.
Fox and Liebman know they have not eliminated all resistance to the act. The hope here, though, is that most voters now realize that the time has come to give up the fight.
As noted in this space two-and-a-half months ago, if you wanted to ensure little to nothing ever gets built in Marblehead under §3A, it would be hard to devise a more effective plan than the one that will be considered at Town Meeting. If the plan passes, the zoning would change such that multifamily homes would be allowed as of right on land with the theoretical capacity for 120 units at Broughton Road and 780 units at the Tedesco site. But the chances that the land would fall out of the control of the Marblehead Housing Authority, in the first instance, or the private golf club and into the hands of a developer seem remote at best.
Our previous MBTA Communities Act editorial this year was prompted by the lawsuit that Attorney General Andrea Joy Campbell had filed in Suffolk Superior Court Jan. 29 against Marblehead and eight other noncompliant communities.
Make no mistake, that lawsuit still exists and has been slowly wending its way through the pretrial process. Indeed, there has been some recent activity in the case that would seem to raise the stakes of our forthcoming Town Meeting vote.
On March 9, one of Marblehead’s co-defendants, the town of Dracut, filed a “motion for a more definite statement.” In a nutshell, Dracut argues that the AG’s complaint was not specific enough when it requested that the court order “reasonably tailored” injunctive relief against Dracut and the other towns. In layman’s terms, what Dracut is saying is that it is not enough for the AG to ask the judge to use the hammer that the Supreme Judicial Court ruled last year she is allowed to wield. Dracut is saying that the AG needs to specify what kind of hammer she wants the court to use.
The AG’s response to that motion may have sent shivers down spines in the co-defendants’ town halls. Throughout the debate over the MBTA Communities Act, it has been widely presumed that the “doomsday scenario,” if the AG successfully sues a town over the MBTA Communities Act, would be the appointment of a special master. That special master would be charged with designing a zoning overlay district that would align with the statutory goal of encouraging multifamily housing production. The court would then order the town to issue permits under those new court-imposed zoning rules.
However, the AG has now imagined an even more draconian possibility.
“The Court’s equitable toolkit would include, but not be limited to, declaratory and injunctive relief that as a practical matter removes the zoning barriers Dracut has erected against the use of Town land for multifamily housing,” the AG’s March 19 response reads. “For example, the Court could declare invalid those provisions of Dracut’s bylaw that impede multifamily housing development, like single-family zoning rules and dimensional restrictions.”
Unsurprisingly, the fact that the AG was contemplating asking the court to wipe out Dracut’s zoning town wide rather than just in particular districts got the town’s attention.
In its March 26 reply, Dracut calls the AG’s suggestion “outlandishly unreasonable when weighed against the legislation she seeks to enforce.”
“Plainly, it is not the ‘reasonable’ or ‘narrow tailored’ relief the Attorney General says that she seeks, but a remedy meant to punish Dracut’s purported noncompliance, not correct it,” the reply continues.
Would a judge ever order such a drastic remedy? Perhaps not. But that risk now has to be part of the calculus for Marblehead, Dracut and the other towns in the AG’s crosshairs.
Fortunately, Town Meeting attendees can vote their way out of this legal quagmire on May 4.
Let’s end this mess. Vote “yes” on Article 4.
