by Philippe Thibault

Towns in Eastern Massachusetts are on pins and needles this Autumn, wondering if the Massachusetts Supreme Judicial Court will provide a trick or treat over an argument posed by the Town of Milton about whether compliance with the MBTA Communities law applies to them, or is enforceable at all.

Speculation by some municipalities is of legislative overreach in the mandate to create housing along the MBTA corridors and adjacent communities.

On October 2, 2024, arguments were made to the Massachusetts Supreme Judicial Court.

For the record, my training is in architecture and not law, although I have read more code books than most people and understand the power of specific language and in the impacts on questions at hand.

A very interesting line of questioning came from the Justices and the questions often dealt with specific language and the intent of choosing specific words.

There is no dispute that the State of Massachusetts can impose zoning requirements on cities and town within the Commonwealth. The State grants the cities and towns the ability to control aspects of zoning and planning through a “Home Rule” petition. As such the State, ultimately, retains power over the municipalities for zoning as it pertains to what is required and what can be imposed. There are sections of Chapter 40A dealing with zoning where the State has exempted some uses from local jurisdiction: educational and religious uses are examples.

Justice Gaziano’s questioning on the law’s purpose as an impact on the societal concern for available housing went largely unnoticed.

There is a need for housing on a diverse level. The need for not only affordable housing is not disputed, but the need for market rate and low-income housing is strong. Most realtors will tell you that the inventories of housing are the lowest in decades.

Many seniors struggle with downsizing their existing homes to find that the purchase of a smaller dwelling takes the remainder of the selling price of their original home after the mortgage is paid. They simply cannot afford to downsize.

Likewise younger families are flabbergasted with cost of a larger home for their growing family. Renovations and additions are becoming the alternative to moving. I often advise clients that,” if they like the neighborhood, then stay and renovate and add.”

Dracut’s Housing Production Plan has estimated that nearly half of its population is stretched thin with the full cost of home ownership. This includes the mortgage, along with the many incidentals: utilities, taxes, insurances, and not to leave out, maintenance.

This population is often referred to as “house poor”. They can afford the home to live in, but they can barely afford to live.

The production plan estimates to satisfy the diverse housing needs of Dracut the addition of nearly three thousand dwelling units would need to be added. This would equate to twenty-five percent increase in housing stocks in Dracut. This is not only single-family homes, but a diversity of homes, apartments, and condominiums. The number represents a fairly modest increase when compared to the ten percent capacity being mandated by the MBTA Communities law.

The issue that seemed to occupy most of the questioning by the Justices delved around the term “guidelines and regulations.”

The State has issued guidelines for compliance. It was said that guidelines are often background music, offering guidance. Unlike regulations that have a penalty for defiance, guidelines are without teeth or claws.

I believe the law was written in such a manner because the communities’ standards for zoning regulations are the enforcement mechanism. The State only mandated local zoning regulations include provisions for the development of multi-family residential dwelling units by right. If the State promulgated regulations for the zoning for the MBTA Communities Law, the State would be mandating community standards. Certainly, the laissez-faire attitude has not projected the societal needs and cultural changes as it pertains to housing. Neither do I believe the communities would care for mandates that call for twenty-five percent increases in housing as is shown in Dracut’s case.

My ultimate review of the SJC Hearing in the matter of Milton is the extension of one year for the deadline for compliance. During that time the State would need to tighten up some of the language in the law and then promulgate “regulations” that would be enforceable.

I would also see the penalties becoming more substantial. Most of the communities that would forfeit grant money due to non-compliance are not receiving grant money to begin with. This puts the burden on the less affluent communities to bear the brunt of housing.