Mass. SJC Affirms Constitutionality of the MBTA Communities Law and the AG's Authority to Enforce It; but Rules the Act's Guidelines Were Issued Unlawfully

(BOSTON) – The Massachusetts Supreme Judicial Court issued its decision in Attorney General vs. Town of Milton, ruling unanimously that the MBTA Communities Act (M.G.L. c.40A, Sec. 3A) is constitutional, and that the Attorney General has the power to enforce it, but that the guidelines which were promulgated by the Department of Housing and Livable Communities pursuant to the statute were not done so lawfully, and would therefore not be in effect until they were reissued in accordance with the Massachusetts Administrative Procedure Act.

“We conclude that the act is constitutional and that the Attorney General has the power to enforce it. However, because the Executive Office of Housing and Livable Communities (HLC) did not comply with the Administrative Procedure Act (APA), G. L. c. 30A, when promulgating the guidelines, they are ineffective,” wrote Chief Justice Kimberly S. Budd for the Court.¹ The guidelines from HLC establish the actual, detailed requirements for zoning changes under the MBTA Communities Law in any given town or city.

(The John Adams Courthouse, Boston, in January, 2013; credit — Wikimedia Commons user Daderot. CC0 1.0 Universal Public Domain Dedication.)

The case drew numerous amicus briefs, listed in a long footnote in the decision, including, locally, the Town of Middleborough.²

The Court reviewed the content of the MBTA law, as well as the procedural history that led to the present situation.

“The act requires MTBA communities to zone for ‘at least [one] district of reasonable size’ where multifamily housing is permitted ‘as of right.’ G. L. c. 40A, § 3A (a) (1). The act further defines ‘a district of reasonable size’ and specifies that any such district must be situated within one-half mile of an MTBA facility. Id. Noncompliant MBTA communities are ineligible for funds from certain State funding sources. G. L. c. 40A, § 3A (b). The last paragraph of § 3A directs HLC [the Executive Office of Housing and Livable Communities], in consultation with three other State agencies, to ‘promulgate guidelines’ to determine if an MBTA community has complied with the act. G. L. c. 40A, § 3A (c),” wrote Chief Justice Budd.³

The Court noted that once the MBTA Act became law, the Executive Office of Housing and Livable Communities “issued a preliminary announcement describing the act and giving notice of its intention to produce detailed guidelines. Over the next two years, HLC issued draft guidelines, conducted community presentations, and solicited feedback directly from affected communities,” as well as liaising with relevant state agencies, such as the MBTA itself and the Department of Transportation.⁴

Critically, the Executive Office of Housing and Livable Communities “did not, however, file with the Secretary of the Commonwealth a notice of public hearing, a notice of proposed adoption or amendment of a regulation, or a small business impact statement within the meaning of the APA [the Massachusetts Administrative Procedures Act].”⁵

Beginning in August of 2022, the Town of Milton’s Select Board and Planning Board made efforts to obey the law. Ultimately, in December, 2023, the Town Meeting of Milton — which is a Representative Town Meeting — approved a zoning bylaw that would have complied with the MBTA Communities Law.⁶

This was met with resistance, and citizens successfully sought a Town-wide referendum on the matter via petition, consistent with the Town’s charter. This was scheduled for February 14th, 2024. Both the Attorney General’s Office and the Executive Office of Housing and Livable Communities “sent letters to town officials, giving notice that they would enforce the funding penalties listed in § 3A and take legal action should the town fail to comply with the act.”⁷

On February 14th, 2024, the voters in the Town-wide referendum voted against the proposed zoning bylaw that would have brought the town into conformity with the MBTA Communities Law. Consequently, the Attorney General brought suit against both the Town of Milton and its Building Inspector, “seeking declaratory and injunctive relief to enforce compliance with G. L. c. 40A, § 3A, as set forth in HLC's guidelines.”⁸

In turn, “Milton filed an answer denying that it was in violation of § 3A and filed a counterclaim against the Attorney General and HLC seeking declaratory relief.”⁹

The Court examined the arguments from Milton — “that § 3A provides for an unconstitutional delegation of legislative authority, that the Attorney General lacks the power to enforce the act, and that HLC's guidelines were not promulgated in accordance with the APA.”¹⁰

On the first question, the Court was “not persuaded” by Milton’s argument “that § 3A violates the separation of powers doctrine because the act vests HLC with the power to make fundamental policy decisions by requiring what the town calls ‘transformative zoning changes’ in MBTA communities.”¹¹

The Court instead reasoned that “by delegating to HLC the power to determine whether a city or town is in compliance with § 3A, the Legislature has not abandoned its policy-making role…. Indeed, the Legislature routinely assigns to others the implementation of a policy adopted through the enactment of a statute.”¹²

On the second question, relating to the power of the Attorney General, the Court ruled that the Attorney General does in fact have the constitutional authority to enforce the law.

“This court long has recognized that the Attorney General has broad powers to enforce the laws of the Commonwealth,” wrote Chief Justice Budd. Per Chapter 12, Section 10 of the General Laws, “[t]he Attorney General has a general statutory duty to ‘take cognizance of all violations of law or of orders of courts, tribunals or commissions affecting the general welfare of the people . . . and shall institute . . . such criminal or civil proceedings . . . as [s]he may deem to be for the public interest, and shall investigate all matters in which [s]he has reason to believe that there have been such violations.’”¹³

Indeed, the Court noted that “[t]he Attorney General ‘also has a common law duty to represent the public interest and enforce public rights.’ Mass. CRINC, supra, citing Lowell Gas Co. v. Attorney Gen., 377 Mass. 37, 48 (1979). We traditionally have construed the term ‘public interest’ broadly, including where the law concerns rights to land and property use.”¹⁴

The Town of Milton’s “interpretation effectively nullifies the power afforded to the Attorney General under G. L. c. 12, § 10. In light of the Attorney General's unique and well established role as a protector of public rights, we conclude that the penalties provided for in the act do not preclude the equitable relief that the Attorney General is authorized to pursue under her broad statutory power,” Chief Justice Budd wrote.¹⁵

On the third question — whether the guidelines promulgated pursuant to the Act were done so lawfully — the Court was persuaded by Milton’s argument that they were not: “ Milton argues that the guidelines as promulgated are ineffective because HLC failed to comply with the APA. See G. L. c. 30A. We agree.”¹⁶

The Court ruled that the guidelines are governed by the requirements of the Administrative Procedure Act, and, “[h]aving determined that the guidelines contemplated by the act fall within the ambit of regulations as defined by the APA, they must be promulgated pursuant to that statute. See G. L. c. 30A, § 3. Under G. L. c. 30A, § 3, agencies engaged in the rulemaking process must, among other things, file notice of a proposed regulation with the Secretary of the Commonwealth, along with a small business impact statement.”¹⁷

However, that is not what happened:

“Here, HLC has admitted that it failed to take either of these necessary steps. The Attorney General suggests that this court should apply a harmless error standard because, she argues, HLC substantially complied with the statute. However, the APA leaves no room for substantial compliance. Strict compliance for agencies promulgating rules is compelled by the plain terms of the statute.”¹⁸

Therefore, “[b]ecause HLC failed to comply with the APA, HLC's guidelines are legally ineffective and must be repromulgated in accordance with G. L. c. 30A, § 3, before they may be enforced,” Chief Justice Budd wrote for the Court.¹⁹

Chief Justice Budd concluded:

“For the foregoing reasons, we declare that the act creates an affirmative duty for each MBTA community to have a zoning bylaw that allows for at least one district of reasonable size where multifamily housing is permitted as of right, as dictated by G. L. c. 40A, § 3A, and that the act's delegation of authority to HLC to promulgate guidelines does not violate art. 30 of the Massachusetts Declaration of Rights. We further declare that the Attorney General has the power to bring suit for declaratory and injunctive relief to enforce § 3A and its corresponding guidelines. However, because HLC's current guidelines were not promulgated in accordance with the APA, we declare them ineffective and, as such, presently unenforceable.”²⁰

Governor Healey and Attorney General Campbell both celebrated the decision in statements issued via press releases (I searched for a statement from the Town of Milton, but did not find one), and the Governor’s press release stated that emergency regulations would be put in place by the Executive Office of Housing and Livable Communities by the end of the week.

Emergency regulations in the Commonwealth are described in material available online via the Massachusetts Trial Court Law Libraries and the Massachusetts Court System:

“If an agency determines ‘that the immediate adoption, amendment or repeal of a regulation is necessary for the preservation of the public health, safety or general welfare, and that observance of the requirements of notice and a public hearing would be contrary to public interest, the agency may dispense with such requirements…’ (MGL c. 30A, § 2) Emergency regulations are not filed into the CMR and remain in effect for only 3 months unless they're promulgated in accordance with the rulemaking procedures in the Administrative Procedures Act. Emergency regulations have the same force and effect as permanent regulations.”²¹

The MBTA Law has been a subject of controversy locally. According to a story and map from Sydney Ko of WBUR, in Plymouth County, Hull, Rockland, and Abington are in compliance with the Act; Hingham, Scituate, Norwell, Pembroke, Kingston, Plymouth, Plympton, Carver, Wareham, Rochester, Lakeville, Bridgewater, West Bridgewater, Brockton, and Whitman are in interim compliance; and Marshfield, Duxbury, Hanover, Hanson, East Bridgewater, Halifax, and Middleborough are not in compliance.²²

Meanwhile, in terms of the actual suit, “[t]he case is remanded to the county court, where the single justice is directed to enter a declaratory judgment consistent with this opinion. The remainder of the claims are dismissed.

So ordered.”²³

1. Attorney General vs. Town of Milton & another; Executive Office of Housing and Livable Communities, third-party defendant, slip opinion, p. 3.

https://www.mass.gov/doc/attorney-general-v-town-of-milton-executive-office-of-housing-and-livable-communities-sjc-13580/download

2. The full list is, per the decision: “We acknowledge the amicus briefs submitted by William J. Driscoll, Jr., and Thomas J. Dougherty; town of Hamilton; town of Middleborough; Eastern Massachusetts Small Business Coalition; Massachusetts AFL-CIO; New England Legal Foundation; Real Estate Bar Association for Massachusetts, Inc.; Denny Swenson and concerned town citizens; Brian O'Halloran and concerned citizens; former Massachusetts Attorneys General; Pioneer Public Interest Law Center and Associated Industries of Massachusetts; Massachusetts Housing and Shelter Alliance, Inc., Father Bill's & MainSpring, Inc., Planning Office for Urban Affairs, Inc., and United Way of Massachusetts Bay, Inc.; Central Massachusetts Housing Alliance, Greater Boston Latino Network, Inquilinos Boricuas en Acción, Haitian-Americans United, Inc., and Immigrant Family Services Institute; John Kolackovsky; the Metropolitan Area Planning Council, the Massachusetts Association of Regional Planning Agencies, and the American Planning Association Massachusetts Chapter; NAIOP Massachusetts, Inc.; Abundant Housing MA, Inc., A Better Cambridge, Inc., Brookline for Everyone, Inc., Chris Herbert, Jenny Schuetz, and John Infranca; Massachusetts Housing Partnership Fund Board; Stephen M. Acerra, Jr.; Homes for All Massachusetts and Transportation for Massachusetts; Ellen Wright; and Citizens' Housing and Planning Association, Engine 6 Newton Housing Advocates, Disability Policy Consortium, Inc., Metropolitan Boston Housing Partnership, Inc., Housing Medford, Building a Better Wellesley, Greater Boston Real Estate Board, Preservation of Affordable Housing, Inc., Affordable Inclusive Milton, Home Builders and Remodelers Association of Massachusetts, Inc., Metro West Collaborative Development, Inc., Greater Boston Interfaith Organization, Inc., Massachusetts Association of Realtors, The Community Builders, Inc., Charles River Regional Chamber, Inc., Massachusetts Association of Community Development Corporations, WinnDevelopment Company Limited Partnership, Planning Office for Urban Affairs, Inc., Massachusetts Housing Finance Agency, Eastern Bank, 2Life Communities, Inc., Revere Housing Coalition, Acton Housing for All, United Way of Massachusetts Bay, Inc., Massachusetts Business Roundtable, Inc., B'nai B'rith Housing New England, Inc., Beacon Communities, LLC, Black Economic Counsel of Massachusetts, Inc., Capstone Communities LLC, Belmont Town of (More!) Homes, Redgate Capital Partners, Community Economic Development Assistance Corporation, Harborlight Community Partners, Inc., Jewish Alliance for Law and Social Action, Inc., and Housing Navigator Massachusetts, Inc. We also acknowledge the amicus letter submitted by the Winthrop Says No to 3A Committee.” Attorney General v. Milton, slip op., Footnote 2, pp. 3-4.

3. Attorney General vs. Town of Milton, slip op., pp. 5-6.

4. Ibid., pp. 6-7; quotation appears on p. 6.

5. Ibid., p. 7.

6. Ibid., pp. 7-8.

7. Ibid., p. 8.

8. Ibid., p. 9.

9. Ibid., p. 9.

10. Ibid., p. 9.

11. Ibid, p. 9.

12. Ibid., p. 11.

13. Ibid., p. 14.

14. Ibid., pp. 14-15. Because Substack does not have an underlining option in terms of formatting, I have italicized judicial decisions and terms.

15. Ibid., 17-18.

16. Ibid., p. 18.

17. Ibid., p. 21.

18. Ibid., pp. 21-22.

19. Ibid., p. 22.

20. Ibid., p. 23.

21. https://www.mass.gov/info-details/learn-about-the-code-of-massachusetts-regulations#what-are-emergency-regulations?-

22. Sydney Ko, “Map: Who is — and isn't — complying with the MBTA Communities Act?”, WBUR, updated Jan. 8th, 2025. https://www.wbur.org/news/2024/05/09/mbta-communities-act-zoning-map

23. Attorney General v. Town of Milton, p. 23. Italics again replacing underlined text in the decision.