BOSTON (State House News Service) — The state's highest court has already upheld the MBTA Communities Act, but several more municipalities continue to fight against the mandatory zoning reforms, in the process deepening a feud between Auditor Diana DiZoglio and Attorney General Andrea Campbell.
Officials in both Middleborough and Marshfield filed lawsuits in Plymouth Superior Court late last week challenging the controversial law, in part citing a Division of Local Mandates finding that Campbell has dubbed "incorrect."
The new cases extend the legal battle over the measure, which seeks to spur much-needed housing production in cities and towns with or close to MBTA service, months after the Supreme Judicial Court ruled that the law is constitutional.
In Middleborough, local leaders allege the state incorrectly declared them noncompliant with the law based on zoning and density requirements that a "computer model" determined the Plymouth County town should be able to support.
Middleborough in 2021 implemented a 40-acre "Smart Growth Zoning District" within half a mile of an MBTA commuter rail station allowing multi-family housing at up to 20 units per acre, which town officials argue should be sufficient to meet the requirements of the law.
"Instead of being celebrated for its innovation and achievements, Middleborough has been vilified and severely penalized because the State's computer model says it should be doing more," the town's public affairs team wrote in a press release.
Both Middleborough and fellow Plymouth County town Marshfield pointed in their lawsuits to another new development: a conclusion from the Division of Local Mandates that the law constitutes an "unfunded mandate."
DiZoglio's office, which oversees DLM, made that determination last month after Wrentham, Methuen and Middleborough asked her team to review the question.
Attorneys for Marshfield wrote that the unfunded mandate conclusion "enables" the town to seek "an exemption from compliance until the Commonwealth of Massachusetts provides sufficient funding to comply with the MBTA Communities Act."
"It is unfortunate that the Town and its Select Board was obligated to take these measures to protect the rights of its residents; however, this action was authorized in an effort to preserve the status quo, and preserve grant funding, pending the final determination of this matter," Marshfield Town Administrator Michael Maresco, a former longtime aide in the secretary of state's office, wrote in a press release alongside the lawsuit.
DLM's involvement appears to have ramped up tensions between some of the state's constitutional officers.
Both Campbell's office and Gov. Maura Healey's office said the DLM opinion about the MBTA Communities Act does not have any legal weight.
"I am grateful to the majority of communities that understand the importance of responsible zoning, and my office and I intend to successfully defend this law in court," Campbell said in a statement. "It is regrettable that the Auditor's incorrect legal assessment has spurred challenges to a law meant to address our housing crisis."
In a joint statement, Healey and Lt. Gov. Kim Driscoll said the MBTA Communities Act "is not an unfunded mandate" and called it "unfortunate that some communities are choosing to use the Division of Local Mandates' advisory opinion to try to stall [the law's] implementation."
"The MBTA Communities Law was passed with bipartisan, nearly unanimous support in the Legislature, signed by a Republican Governor and is being implemented by our administration," they said. "The law is essential to our efforts to lower the high cost of housing, which we know is one of the greatest challenges facing the people of Massachusetts. We are proud that 119 communities have already adopted new zoning under this law, with more than 3,300 new housing units in the pipeline because of it."
DiZoglio on Tuesday published an "open letter" on social media in response to Campbell and Healey, writing that her team "made no statement, even remotely, suggesting that the law is not the law." Instead, she wrote, DLM suggested the funding mechanism "needs work" that is "well within the reach" of the administration and Legislature.
"Attempts to scapegoat my office, by the Attorney General and others, for issues that have arisen due to the inadequate vetting of well-intentioned legislation and EOHLC's failure to file the required fiscal impact statements -- while mischaracterizing the Division of Local Mandates' determination as being anything more than the fulfillment of its statutorily required duties to respond to municipalities who seek such determinations -- are grossly out of line and incredibly disingenuous," DiZoglio wrote.
The auditor and attorney general are already at odds over DiZoglio's attempts to audit the Legislature using the powers voters approved in a ballot law in November. Legislative leaders have been resisting, saying the probe would violate the constitutional separation of powers, and DiZoglio has repeatedly contended Campbell is slow-walking legal action that could unjam the dispute. Campbell, meanwhile, insists her office is following the appropriate "process" and cannot intervene until an official "dispute" arises between DiZoglio and the Legislature.
Most of the 177 municipalities subject to the MBTA Communities Act have complied with the required zoning reforms, but a handful have resisted along the way, in some cases because Town Meetings rejected the zoning changes.
Campbell sued the town of Milton last year over its noncompliance, and the Supreme Judicial Court ruled in January that the law is constitutional and can be enforced by legal action. However, the high court said the law was ineffective at the time because the Healey administration improperly rolled out regulations.
The Executive Office of Housing and Livable Communities published emergency regulations soon after the SJC's ruling to get implementation of the law back on track, giving cities and towns that missed previous deadlines until Feb. 13 to submit action plans.
Those emergency regulations are in effect for 90 days. The state accepted public comment on updated final regulations through Feb. 21, and they will be published by April 14, an official said Tuesday.
The town of Holden dropped its opposition to the law last week and agreed to submit a plan that would comply with the mutli-family zoning requirements.
Written by Chris Lisinski/SHNS