MBTA Communities

---

Added 1/9/25

Overview

Nearly four years ago, the State Legislature passed G. L. c. 40A, § 3A, the Massachusetts Bay Transportation Authority Communities Act (“the MBTA Communities Act). This legislation required cities and towns that had, or were adjacent to, MBTA services to adopt zoning laws that provide for at least one district of multifamily housing "as of right" near those MBTA facilities. In February of 2024, the residents of the town of Milton (“Town”), which has four MBTA stations, voted down a proposed zoning plan which would satisfy the requirements of the MBTA Communities Act. The Attorney General then brought suit against the Town seeking to require it to comply with the MBTA Communities Act. The Town countersued, claiming that the MBTA Communities Act was unconstitutional and that the Attorney General did not have the authority to enforce it.

The matter was referred to the Supreme Judicial Court (SJC), the state’s highest court. They have now issued a ruling finding the MBTA Communities Act is constitutional and that the Attorney General does have the power to enforce it. However, they also found that the Executive Office of Housing and Livable Communities (HLC) did not comply with certain requirements of the Administrative Procedure Act (APA), G. L. c. 30A, when promulgating the guidelines for the MBTA Communities Act, making the ones issued ineffective. In short, the MBTA Communities Act is valid and enforceable, but the guidelines for its implementation must be reissued in accordance with state statute. 

Constitutionality of the MBTA Communities Act

The Town of Milton argued that the MBTA Communities Act is in contravention of the State Constitution because it violates the “separation of powers doctrine”, meaning that it gives a non-legislative body, in this case the HLC, the power to make fundamental policy decisions as opposed to merely vesting with it responsibility to implement legislatively determined policy. However, the SJC found this argument unpersuasive. The Court noted that the language of the MBTA Communities Act set forth the general requirements for compliance, notably identifying the size, location, and density requirements for the newly required zoning districts. Thus, “[t]he parameters provided by the act, in addition to the requirement that the size of the district be "reasonable," are enough to guide the agency in issuing rules to determine whether an MBTA community complies with the act's requirements.”

Enforceability by the Attorney General

The Town of Milton next asserted that the State Attorney General is not authorized to bring suit to enforce the MBTA Communities Act because that act doesn’t provide for such enforcement and instead provides for certain consequences for noncompliance, namely ineligibility for certain grants. Again, the SJC was unconvinced by this argument.

Under Massachusetts law, the Attorney General's enforcement power is not dependent upon whether a particular statute happens to reference it. Rather, “the Attorney General has broad powers to enforce the laws of the Commonwealth.” Moreover, the “Attorney General ‘also has a common law duty to represent the public interest and enforce public interest rights.’”

Citing to the statutory maxim "expressio unius est exclusio alterius," i.e., the expression of one thing implies the exclusion of others, the Town of Milton contended that because the MBTA Communities Act contained specific penalties for noncompliance, imposing those penalties was the limit of the Attorney General’s authority. While recognizing that such doctrine can be applied in certain instances, the SJC determined it was not appropriate in this case.

The SJC noted that if it were to accept this argument, the only consequence to an MBTA community for failing to comply with the act would be the loss of certain funding opportunities. Thus, those communities which choose to forgo the identified funding programs would be free to ignore the legislative decision to require towns benefiting from MBTA services to allow for certain amounts of multifamily housing near their local MBTA stations and terminals. That would convert a legislative mandate into a matter of fiscal choice, which is contrary to Massachusetts law.

Procedure for Issuing Guidelines

Finally, The Town of Milton argued that the guidelines promulgated for compliance with the MBTA Communities Law were ineffective because HLC failed to comply with the APA. See G. L. c. 30A. Here, the SJC agreed.

The Attorney General contended that HLC is not required to adhere to the c. 30A procedure because the act directs the agency to promulgate "guidelines" rather than "regulations." See G. L. c. 40A, § 3A (c). The Attorney General further asserted that even if the APA does apply, HLC substantially complied with the statute, and thus any omissions should be considered harmless error.

The SJC noted that the purpose of the APA is to "'establish a set of minimum standards of fair procedure below which no agency should be allowed to fall' and to create uniformity in agency proceedings". To that end, the APA requires State agencies (like HLC) to take certain steps when promulgating regulations in order to "give notice and afford interested persons an opportunity to present data, views, or arguments." The MBTA Communities Act directs HLC to "promulgate guidelines to determine if an MBTA community is in compliance." And the guidelines issued by HLC do just that, both interpreting and implementing the act. Given the breadth, detail, substance, and mandatory requirements of the HLC guidelines in implementing the act, the SJC determined that they fall within the broad definition of a ‘regulation’ for purposes of compliance with the APA. Having determined that the MBTA Communities Act guidelines were subject to the requirements of the APA, because HLC admittedly did not comply with the strict requirements of the APA when issuing those guidelines, the SJC found that they were ineffective, and had to be “repromulgated”.

Implications for Plymouth 

Last year, Plymouth underwent the process of seeking to comply with the MBTA Communities Act. Plymouth undertook a public comment process, then consistent with sentiments of the community, Plymouth proposed to create new, as of right, multi-family zoning districts on top of already built multi-family housing, which meant that little or no new housing was likely to be built. As verified by a consultant approved by the State, that approach was permitted under the guidelines issued by the HLC. Those proposed zoning changes were approved by Town Meeting and then submitted to the State in June of 2024. However, the State has yet to issue a determination that the proposed zoning changes meet the MBTA Communities Act guidelines for compliance.  

Now that those regulations have been deemed ineffective, the question is what happens to those communities which undertook zoning changes consistent with those requirements. The SJC decision only states that the guidelines must be “repromulgated” pursuant to the requirements of the APA. If the State chooses to proceed with the same guidelines, Plymouth can simply resubmit its existing application. However, Plymouth was just one of many communities which created overlay zoning not likely to lead to new housing. To negate some of this effect, the State may now choose to issue new regulations limiting or even eliminating a community’s ability to do so.

It is now clear that communities like Plymouth do not have a choice as to whether to comply with the MBTA Communities Law, and the consequences are not limited to loss of certain State funding. What Plymouth will ultimately be required to do will depend on the final State guidelines for compliance. And should the MBTA elect to resume even limited service to the Cordage Park station, Plymouth would be required to allow for multi-family housing that could create drastic change to North Plymouth and further strain services and infrastructure. 

Time will tell.