The road to more housing choice in Massachusetts has been (and will be) long and sometimes bumpy. Some of the many twists and turns in our journey towards more sensible housing policy have come in the form of legal disputes that have arisen over zoning laws and their enforcement. We are grateful for moments when the path ahead of us becomes clearer, and we were fortunate to have one such moment recently.
This past month, the Supreme Judicial Court of Massachusetts released its decision in the case of Attorney General vs the Town of Milton. At issue in this lawsuit: the right of the Commonwealth to enact a law (The MBTA Communities Act, or “3A”) that mandates changes to local zoning regulations, and the Commonwealth’s right to enforce that law. The ruling is important not only because it will influence our next steps as an organization, but also because many of the detractors of 3A cited its questionable constitutionality as grounds on which to oppose the law. The Court’s strong affirmation of the law’s constitutionality means that detractors, as well as those who are undecided, would do well to reflect on their opposition to the MBTA Communities Act.
Simply put, the Court ruled that it is constitutional for the state to write laws that mandate changes to zoning laws and it is constitutional for the state to enforce those laws.
The only ambiguity came in the form of some bureaucratic box-checking: the courts recognized that during this process, the Executive Office of Housing and Livable Communities (EOHLC) created guidelines that were erroneously being treated as regulations; such guidelines must go through an additional bureaucratic process to become regulations, and EOHLC was ordered to undergo that process. The law remains in place. The Supreme Judicial Court actually refused to hear any argument about the Commonwealth’s right to enforce zoning laws, since that argument was settled by case law when affordable housing requirements were implemented by the Commonwealth in 1969. Ultimately, this was a case about policy and procedure far more than it was about sweeping claims of constitutionality.
The bureaucratic steps for the guidelines to become regulations have already begun. In the meantime, the Healy Administration has issued “Emergency Regulations” that will be in effect for ninety days while the regulations are finalized. The Emergency Regulations have set a new deadline for towns to become compliant with 3A: July 14th.
So, what does this all mean for Marblehead? It means that we are currently behind the curve and we have some catching up to do. The courts have spoken, and the opponents to the MBTA Communities Act have less ground to stand on than ever. Massachusetts, like much of the country, is experiencing a severe housing shortage and legislation like 3A is one of the many careful steps we must take as a Commonwealth to fix it. Marblehead has a duty and obligation to be a part of this solution, and this is the first small step in the right direction. We ‘Headers need to go to Town Meeting on May 5th and vote yes on 3A – it’s the law, and it’s the right thing to do.