The Massachusetts Attorney General’s Office has approved Marblehead’s controversial MBTA Communities zoning bylaw, but warned that the town could face legal challenges if its new housing districts exist only on paper.
In a seven-page letter dated Oct. 16, Attorney General Andrea Campbell’s office approved Article 4, adopted at Town Meeting on May 4, which established two districts where multifamily housing is permitted by right. Those districts are at Broughton Road and the Tedesco golf course.
In an email to the Current Sunday night, Planning Board Chair Marc Liebman wrote that “Marblehead is 3A compliant.”
He added that the letter is “is signed by the Attorney General. This is our compliance notice. It’s a fairly typical legal decision for this sort of thing.”
However, the letter includes the following language:
“As to the approved portions of Article 4, the town must separately obtain from the HLC (Executive Office of Housing and Livable Communities) a determination that the town has a Section 3A compliant multi-family zoning district…. We understand that the town’s district compliance application is currently under review by HLC.”
Asked about that language, Liebman said, “We have a preliminary EOHLC approval but not final. Pressing for this starting Monday. “
The letter, signed by Assistant Attorney General Kelli Gunagan, director of the Municipal Law Unit, addresses objections raised by Marblehead resident Nick Ward, who argued that the golf course should not count as developable land under state regulations.
Ward contended that the property falls into a category of recreational land unlikely to be developed and therefore should be excluded from the acreage used to determine whether Marblehead meets the law’s requirements.
Town Counsel Adam Costa disputed that interpretation in a July 31 letter to the AG’s office, arguing that the golf course is privately owned, is not permanently protected from development and could be sold or converted to residential or mixed-use development.
The AG declined to resolve that dispute, explaining that determining whether the golf course qualifies as developable land is the responsibility of the state housing office.
“Whether the Section 3A Overlay District brings the town’s zoning by-law into compliance with Section 3A is a determination for HLC,” the letter states.
The AG’s office also issued a warning about the potential consequences of establishing housing districts where development cannot realistically occur.
“If the town has created a district where no multi-family housing can actually be constructed (commonly referred to as a ‘paper district’), the town may be subject to litigation under federal and state fair housing laws,” Gunagan wrote.
The letter explains that zoning restrictions could violate state and federal fair housing laws if they unfairly limit housing opportunities for families with children, people receiving housing subsidies, people of color, people with disabilities or other protected groups.
According to the letter, the AG’s Office did not find that Marblehead had violated those laws but strongly recommended that town officials consult with legal counsel.
