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    4. Court holds that MBTA Communities must zone for multifamily housing

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    Court holds that MBTA Communities must zone for multifamily housing

    Jan 9, 2025

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    By Karla Chaffee

    The Massachusetts Supreme Judicial Court confirmed that MBTA communities must zone for multifamily housing and the Attorney General can enforce compliance.

    The long-awaited decision from the Supreme Judicial Court in Attorney General vs. Town of Milton & Another, No. SJC-13580 was issued on Wednesday, January 8, 2025.  While guidelines issued by the Executive Office of Housing and Livable Communities (“HLC”) are presently unenforceable, the Court confirmed the mandate of G.L. c. 40A, §3A, holding

    “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….”

    What are MBTA Communities?

    The MBTA Communities Act, signed into law in January 2021, requires 177 cities and towns that host or are adjacent to MBTA service to create at least one district for multi-family housing near public transportation, without age restrictions, to support family housing and economic growth.

    Dispute examines AG’s authority to enforce compliance with MBTA Communities law

    When the Town of Milton failed to adopt a zoning bylaw in compliance with the MBTA Communities Act, the Attorney General sought declaratory and injunctive relief. The dispute examined the Attorney General's authority to enforce compliance with state statutes and the implications for local zoning regulations.

    Milton argued that the Attorney General lacked the authority to bring an action seeking declaratory or injunctive relief to enforce the law since § 3A precludes noncompliant communities from receiving certain grant funding and § 3A is silent on the Attorney General’s enforcement authority.  The Court rejected this argument, finding “the Attorney General's enforcement power is not dependent upon whether a particular statute happens to reference it.”  Further, allowing communities to forego grant funding and choose noncompliance would thwart the Legislature’s intended purpose: to increase the housing stock via a mandate to allow multifamily housing by-right.

    What’s next for MBTA Communities?

    The decision includes at least three important take aways:

    • Every MBTA Community must have at least one zoning district of reasonable size where multifamily development is permitted by right.
    • The Attorney General may enforce 3A and seek injunctive or declaratory relief.
    • HLC must follow the procedural requirements of the Administrative Procedures Act and re-issue guidelines. While the current guidelines are unenforceable, we expect the administration to act quickly to implement the Court’s decision.

    Nixon Peabody was proud to author an amicus brief in the case on behalf of Citizens’ Housing & Planning Association (CHAPA) and over 30 joining parties. The court also ruled today that the guidelines/regulations must be revised accordingly. Governor Maura Healy indicated that she would file emergency regulations consistent with the court’s decision, which will be effective immediately upon filing.

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    The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

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