The Massachusetts housing crisis won’t be solved by a handful of communities trying to do the right thing while others engage in patterns of avoidance, half-hearted efforts, and — for a few outliers — outright violation of the law.
All along housing advocates have warned that making the most of the new law aimed at increasing multifamily housing in communities served by the MBTA will depend not just on the carrots provided by several state grant programs but upon the sticks of real enforcement efforts.
Last week Attorney General Andrea Campbell brought that stick to the housing fight with an advisory to the 177 communities impacted by the new requirements, reiterating that the law is the law and opting out isn’t an option.
The stakes have never been higher in the fight to increase the pool of available housing — especially multifamily housing. If the current effort around transit hubs succeeds, it could help determine whether Massachusetts has room to grow, room to house a workforce that is the key to its economic future. The program also holds the key to providing all of the state’s diverse populations access to some communities that have steadfastly resisted sharing their bucolic settings and high-quality school systems with anyone who can’t afford a single-family home on a 2-acre lot.
In announcing her enforcement effort, Campbell noted that the housing crisis “is inflicting unacceptable economic, social, and environmental harms across our state — particularly on working families and people of color.”
The zoning reforms demanded by the law, signed by then-Governor Charlie Baker in January 2021, impose what Campbell called “reasonable levels of multifamily housing development” near transit stations in the communities that benefit from MBTA service, including commuter rail service. The first preliminary action plans were due Jan. 31 and all but four communities have complied. The outliers are Berkley, Holden, Marshfield, and Middleborough. Dozens more, however, remain under review by the state’s Department of Housing and Community Development.
The advisory issued by the attorney general noted that the law is quite specific that communities “shall have” a plan. Campbell said it “does not provide any mechanism by which a town or city may opt out of this requirement.”
That would suggest that folks like Mark Germain, chair of the Middleborough Select Board, will get his wish when he said, “if someone wants to take us to court, we’ll go to court. I’d rather that than overwhelm our town with new development.”
And that goes to the heart of what Campbell is up against.
For now, the attorney general’s office considers those four outliers as simply having missed a deadline. Other communities that DHCD might find somehow lacking a truly robust or sincere plan will also be given time to adjust those plans. After all, as one member of the AG’s team noted, the democratic processes required, including votes at town meeting for zoning changes, often take time.
So for now most communities will get the benefit of the doubt, that their intention is to comply not simply with the letter of the new law but it’s spirit.
As Campbell reminded in her advisory, MBTA communities must also comply with the Massachusetts Antidiscrimination Law and the federal Fair Housing Law and could find themselves in violation of those laws if their “zoning restrictions have the effect of unfairly limiting housing opportunities for families with children, individuals who receive housing subsidies, people of color, people with disabilities, or other protected groups.”
It’s a charge leveled earlier by Lawyers for Civil Rights, which had threatened to sue what at the time were seven noncompliant communities and criticized other “predominantly white towns” for submitting action plans with “listed characteristics that evince thinly veiled racism.” The group cited Bellingham, for example, for wanting to maintain “existing neighborhood character.”
The tugging and pulling of not just creating more housing but doing it a way that advances fairness and equity has just begun. The next big deadline for actual compliance for rapid transit communities is at the end of this calendar year. Communities adjacent to the commuter rail get an additional year to comply.
And so Campbell’s advisory was her own first-round effort to keep the program on track, convincing all but the most intractable that this is serious business.
“We’re not planning any see-you-in-court moments until we’ve done our absolute best to offer support and collaboration,” Deputy Attorney General Abby Taylor told the editorial board. While noting that she has a team of trained litigators at her disposal, she added, litigation “isn’t a good use of our resources or of municipal resources.”
Sometimes doing the right thing in the right way is also the easy way for cities and towns — and for their taxpayers.
Correction: An earlier version of this editorial misstated the title of Abby Taylor. She is deputy attorney general.
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