Boston, MA — Nearly four years after the outset of the COVID-19 pandemic, Massachusetts is grappling with an ongoing housing issue through legislation aimed at fostering easier development around public transit hubs. This push, embodied in the MBTA Communities Act, mandates that 177 largely eastern cities and towns create zones that permit multi-family housing by right, a move to ease the state’s intense housing shortage.
This legislative effort, spearheaded by Sen. Brendan Crighton of Lynn, is now at the center of a critical debate before the Supreme Judicial Court following a legal challenge led by Attorney General Andrea Campbell. Campbell’s lawsuit against the town of Milton, which contests its failure to comply with the new law, highlights a broader tussle over state versus local authority in addressing Massachusetts’ affordable housing crisis.
In his recent appearance on The Codcast, Crighton reflected on the surreal experience of having his legislative commentary used in court arguments. “Knowing that my words were recited in court was as surprising as it was honoring,” he remarked, suggesting he might have prepared his remarks with even greater care had he anticipated their judicial scrutiny.
The intricacies of the law’s enforcement are under a microscope, with Justice Scott Kafker expressing skepticism during court proceedings. He questioned whether the limited use of grant withholding — described metaphorically as offering “carrots” but only a “twig” for enforcement — truly sufficed as a regulatory mechanism. The case doesn’t hinge on the existence of a housing crisis, which is broadly acknowledged, but rather on the specific powers the law grants the executive branch and possibly the courts to ensure compliance.
House and Senate leaders initially intended the legislation to provide sufficient regulatory teeth, empowering the Attorney General’s office to enforce compliance. “We assumed the attorney general would enforce these laws, as has historically been their role,” Crighton noted, addressing concerns over whether the law’s wording effectively conveyed legislative intent.
Critical to this enforcement is the guidance from the Executive Office of Housing and Livable Communities, which has been tasked with creating clear criteria for evaluating whether communities are in alignment with the new zoning requirements. Amy Dain, a zoning expert and consultant, praised the approach as “very tailored and thoughtful,” suggesting it demonstrated the state’s careful consideration in addressing varied local conditions and capacities.
Encouragingly, about 80 communities have already revised their zoning rules to meet new standards, indicating a positive response to the state guidelines. “This shows that the standards were not only well-conceived but also implementable across diverse communities,” Dain added on The Codcast.
Yet, despite these early signs of progress, the question of enforcement remains a hotbed of contention, with Milton’s resistance potentially setting a precedent for other towns. The outcome of this legal dispute will likely resonate beyond Milton, influencing how aggressively Massachusetts can pursue its goal of easing a crisis that has made housing unaffordable for many of its residents.
As the Supreme Judicial Court continues to deliberate, the clarity and fate of the MBTA Communities Act hang in the balance, with significant implications for the state’s ability to govern local zoning practices effectively. Whatever their decision, it is destined to profoundly impact the landscape of housing development in Massachusetts.