At the heart of the state’s housing crisis is a fundamental disconnect: Governor Maura Healey’s administration wants cities and towns to allow more housing, and cities and towns, by and large, do not want to do that.
Now, as two opposing campaigns gear up for a critical vote next week on the Town of Milton’s state-mandated plan to zone for more apartments and condominiums, it appears that disconnect could be tested in court.
Attorney General Andrea Campbell’s office told Milton officials last month that if residents vote against the town’s plan to comply with the MBTA Communities Act — the 2021 law that requires municipalities served by transit to write land-use rules that allow more multifamily housing — she would consider suing the town. And if Campbell’s office doesn’t pursue legal action, it is likely that another legal advocacy group would.
Such a lawsuit, legal experts and advocates say, could have far-reaching implications for perhaps the most ambitious housing law Massachusetts has passed in decades, potentially strengthening the teeth behind the state’s bid to compel cities and towns to help dig the state out of its housing crisis.
The case would be straightforward, legal experts say. While communities have questioned whether or not the MBTA communities law is truly enforceable, its language is fairly cut and dry, said Lisa Alexander, a professor of US housing law and policy at Boston College. The law says communities with access to transit “shall” draft new zoning rules. And while Beacon Hill has long deferred to local officials on matters of land use, the state has the right to preempt local rules.
“The MBTA communities law is a clearly stated and articulated law,” Alexander said. “There’s really no question that the law is a mandate to municipalities. And if Milton fails to comply with it, the state law would take precedence over the local referendum vote.”
At question in the referendum, which will take place Feb. 13, is a zoning plan that Milton Town Meeting passed in late 2023 to comply with an end-of-year deadline to meet the law’s parameters. While the plan — which enables new housing in key stretches of town including Eliot Street, East Milton Square, and the area around the Mattapan Trolley stop — passed Town Meeting with a two-thirds vote, some residents who were concerned about traffic and overdevelopment gathered enough signatures to trigger a townwide vote on the issue.
It has become clear over the past year as towns began grappling with the new housing law that a legal showdown was brewing. When the first guidelines were circulated by the state, some local leaders and residents were outraged and publicly contemplated defying the law.
Some, including the Milton residents campaigning against the rezoning, have also questioned the legality of the guidelines drafted by state housing officials, which created parameters for where the zoning should be and how much density it should allow. Some residents think the guidelines require too much density and are overly prescriptive.
John Infranca, a law professor at Suffolk University, said it is unlikely a judge would throw out the guidelines, because the law explicitly grants the state’s office of housing the authority to draft them. He said he has “every reason to think [the courts] would treat them as a reasonable interpretation of the law.”
Infranca said that if he were an attorney representing Milton, he would not want the town to be involved in a lawsuit in which the town argues against state guidelines.
“This is a murky area,” he said, “and it seems foolish and somewhat reckless under that murkiness to risk noncompliance.”
Any potential legal action would be the first significant lawsuit in Massachusetts to test the state’s authority over local zoning in decades. Though other states, including California and Vermont, have been preempting local control more often in recent years in an attempt to create a concerted housing production strategy that is consistent across municipalities. California’s attorney general has successfully sued multiple cities and towns to compel them to create state-mandated housing production plans and zoning rules.
Some legal experts said that if Milton residents vote down the zoning plan, there could be grounds for a lawsuit over more than just MBTA communities law. It is possible that Campbell’s office — which is launching a Housing Affordability Unit to enforce housing rules — or another legal group could also sue on the grounds that Milton is violating national and state fair housing laws, rules that prevent municipalities from enacting discriminatory housing policies that have rarely been pursued in Massachusetts, Alexander said.
A case could theoretically be made that a “no” vote would further a history of well-documented restrictive zoning rules that make it more difficult for low-income families and people of color to live there, she said.
Lawyers for Civil Rights, a legal advocacy group that last year sued the Town of Holden for refusing to submit an MBTA communities “action plan,” has said it is closely following the referendum in Milton.
“We won’t hesitate to bring legal action to the extent we think it’s warranted,” said Jacob Love, a staff attorney for the group. “This law was specifically passed because municipalities were exercising their local authority on zoning to an extent that was having an extreme effect on housing supply. It should be enforced.”