Today, January 8, 2025, the Supreme Judicial Court released its long-awaited decision regarding the Attorney General’s enforcement action against the Town of Milton for its failure to comply with the MBTA Communities Act and the guidelines adopted by the Executive Office of Housing and Livable Communities (HLC). Milton argued that the statute provided the consequence for non-compliance (i.e., loss of state funding) and that the Attorney General’s enforcement action and the guidelines interpreting the statute were ultra vires. Attorney General v. Town of Milton, SJC-13580 (Jan. 8, 2025).
The SJC held that the statute is constitutional and that the Attorney General has authority to sue in equity to enforce it. However, because HLC did not follow the procedures under the Administrative Procedure Act, G.L. c. 30A, when promulgating the guidelines, the guidelines are ineffective.
The Court noted that the statute’s directive that the required zoning district be of reasonable size, provide a density of at least 15 residential units per acre, and be located within 0.5 miles of an MBTA facility, was sufficient to provide HLC with a basis to determine if municipalities were in compliance. The Court rejected Milton’s argument that the statute could only be enforced by withholding funds under the programs identified in the statute and not by enforcement in equity by the Attorney General. The Court noted that the Attorney General has broad, general statutory authority to enforce the laws of the Commonwealth, and that accepting Milton’s argument would effectively nullify the Attorney General’s authority under G.L. c. 12, § 10.
Critically, though, the Court agreed that HLC was required to comply with the Administrative Procedure Act for the guidelines to be effective. The reference in the statute to “guidelines” rather than “regulations” did not mean that a lesser process could be followed, nor was “substantial compliance” with the APA sufficient. Since strict compliance with the APA is required and admittedly was not, HLC must repromulgate the guidelines before they may be enforced.
The main question: What does this mean? For municipalities that have adopted zoning districts that comply with Section 3A, those districts remain validly adopted once approved by the Attorney General’s Municipal Law Unit. For municipalities that have not adopted compliant districts, the deadlines for acting are no longer enforceable. Governor Healey announced this morning that HLC will file emergency regulations by the end of this week. Emergency regulations are immediately effective for three months, during which there will be a public comment period resulting in promulgation of permanent regulations. Therefore, communities that do not now have compliant zoning districts, or are not in interim compliance, will likely need to come into compliance within a short period of time. Those that do not do so will be subject to broad enforcement authority by the Attorney General, including injunctive relief. What remains unanswered is whether the repromulgated guidelines will differ from the current guidelines, whether any portion of the guidelines are beyond HLC’s regulatory authority to adopt, and the extent of the Attorney General’s equitable authority to enforce compliance.
What is clear from the decision is that a municipality is not permitted to convert non-compliance with the “legislative mandate into a matter of fiscal choice.”
Please contact us as further questions arise.
We are here to help.
Comments