Notwithstanding a major victory in January when the Massachusetts Supreme Judicial Court ruled that the MBTA Communities Act is constitutional and that the attorney general has the power to enforce the law, the legal and legislative efforts to undermine the law continue. The most recent legal challenge was brought by the Town of Duxbury and eight other communities who alleged that the law was an unfunded mandate imposed on cities and towns by the Commonwealth within the meaning of the so-called Local Mandate Law (G.L. c. 29, § 27C) and was, therefore, unenforceable without the state potentially providing hundreds of millions of dollars of funding to MBTA communities.
These communities based their argument on a report released earlier this year by State Auditor Diana DiZoglio that, while unable to estimate what the costs of compliance would be for those cities and towns subject to the law, concluded that it “imposes direct service or cost obligations on municipalities by the Commonwealth that amount to more than incidental local administration expenses.”
In their complaint, the nine towns relied on the auditor’s report and pointed to costs they would incur to update zoning codes that map out where multi-family housing would be allowed as of right. The towns also said the new housing that would be developed under the law would lead to increased expenses for roads, schools, and police and fire services.
But in the case of Town of Duxbury, et. al, v. Commonwealth of Massachusetts, Superior Court Civ. Action No. 2583CV00303, Judge Mark Gildea held that the cost to amend their zoning bylaws to comply with the law were merely “incidental local administrative expenses.” He said that any costs the towns would incur from future housing development were speculative. The law requires towns to change their zoning, but it doesn’t mandate spending money on anything else. The law and related rules “do not compel construction, they merely encourage it,” he wrote.
Judge Gilda’s decision has been appealed and is pending in the Supreme Judicial Court, which will have the opportunity for the second time to rule on the legality of the MBTA Communities Act.
Meanwhile, some state legislators continue to try to weaken or exempt their towns from the MBTA Communities Act (G.L. c. 40A, § 3A) through filing bills or sponsoring amendments to the state budget. To date, those efforts have been unsuccessful due, in part, to the opposition of the HBRAMA.
A copy of the court’s decision can be found here.