To the editor:
I response to Mr. DiPiano’s letter, I have read G.L.c.40A Sec 3A along with the attorney general’s guidance. As a former Massachusetts state regulator, I am very familiar with enforcing compliance with regulations from state and federal laws. The vote at Town Hall should have only been a “yes” for the current plan presented or a “no” that would revise the plan or develop a new plan. A “no” vote should not have been for “no plan at all,” as that would be voting to violate state law. That would be the same as voting to allow drivers to not stop for pedestrians in crosswalks if you don’t like that state law. Here are some answers to Mr. DiPiano’s assertions from the AG’s consumer guide on 3A:
The MBTA Communities Act was adopted in January 2021, as part of legislation to strengthen the state’s economy. It was passed by broad bipartisan majorities in the legislature — the Senate voted unanimously in favor of the act, and the House voted 143 in favor to 4 against. Gov. Charlie Baker signed the act into law on Jan. 14, 2021. [Source: H.5250 (2020)]
Yes. The law states clearly that 177 communities covered by the MBTA Communities Law “shall have a zoning ordinance or bylaw that provides for at least one district of reasonable size” that permits multi-family housing as of right.
Yes, it is. Under the state constitution, our state legislature has the power to pass laws about municipal zoning. In the words of our state Supreme Court, this gives the state the “supreme power” in zoning matters.
Litigation has challenged Chapter 40B, for example, based on an argument that the state cannot require communities to allow low- and moderate-income housing developments that would otherwise violate local zoning. But those challenges have failed because the Constitution gives the state the authority to restrict local zoning. The state Supreme Court has consistently required municipalities to comply with state law.
Communities that fail to comply with the MBTA Communities Act automatically lose certain state funding, including funding: for local infrastructure generally, such as road, bridge, water and sewer improvements (known as MassWorks); for local infrastructure projects that support housing (known as HousingWorks); for EOHLC grants to communities with a “Housing Choice” designation; and state funding under the Local Capital Projects Fund.
In addition, intentional or persistent non-compliance may result in an enforcement action against the municipality by the attorney general. Any such action would seek a court order requiring the community to comply with the law. Such a lawsuit is currently pending in the state Supreme Court against the Town of Milton.
Finally, the attorney general has already issued an advisory that MBTA communities can not refuse state funds in order to not comply with the law.