To the editor:
Reports of a Special Town Meeting and a new message packaging up the MBTA Communities Act as a kinder and gentler version of itself have been published and promoted. One message conveyed by proponents of this measure is that the No on 3A vote was a result of misinformation and voters acting emotionally because they either don’t understand the law or are acting emotionally. Select Board Chair Erin Noonan continues her mantra “it’s the law.” And, the acolytes of this measure – the true believers – continue to tell us that that this benevolent measure will ease housing prices and low inventory. All of this is the misinformation people are being fed.
Let’s explore these claims, beginning with the condescending statement that the No on 3A voters are misguided ignorant children and upstarts. I can’t speak for everyone, but I am one of the no voters. I didn’t come by my Juris Doctor degree (cum laude) easily. First, I had to earn my B.A. with two majors and a concentration (magna cum laude) and then I had to work my butt off to pay my way through law school while working full time. Yet I managed to become an editor of the New England Journal on Criminal and Civil Confinement, had a note published in law school that has been referenced by academia and courts in other states, and then had to pass the bar exam. Then came the next almost 29 years of litigation practice, founding my own law firm, and being selected by Best Lawyers in America, Boston Magazine, Super Lawyers, and appearing in Forbes and Fortune magazines. In sum, my parents didn’t raise no dummy. Rest assured that I am not having a reflexive reaction to this statute because I’m just colicky. And you can bet your bottom dollar that I’ve read G.L. c. 40A Sec. 3A and case materials regarding pending litigation. I am not sure that I can say the same for some of the proponents of this measure serving in official capacities in Marblehead based on what I hear from some of them.
Now, I’m sure that I’ve read that insulting people you may be trying to win over to your point of view is not the first, best way of going about that task. Dale Carnegie might have mentioned something about that in “How to Win Friends and Influence People.” So, if proponents are trying to convince No on 3A voters to come over to their side, they may want to read that book.
Second on our list is the claim that the MBTA Communities Act is a panacea to the so-called housing crisis. But even The Boston Globe refutes that claim. In his article dated May 18, 2024, columnist Andrew Brinker’s story appeared under the title “The state’s new housing law aimed to help fix the affordability crisis. Experts now say it won’t deliver.” Experts – not misguided petulant miscreants – who favor the measure told The Boston Globe the MBTA Communities Act won’t do what the aforementioned acolytes claim it will do. Let that sink in for a minute. Experts on the housing crisis told The Boston Globe that 3A won’t work. After that has sunk in, please tell us again how it will solve the problem it is aimed to solve and show us your expert credentials upon which you rest to make that claim.
I’ll wait.
Third, and my personal favorite, is the Select Board chair’s continual claim that “the law is the law”. If the voters have no choice but to accept G.L. c. 40A, why is there a need to vote on it in the first place? There are two issues presently before the courts. One is the constitutionality of the statute itself and the other is the scope and breadth of the state’s authority to compel compliance with the statute rather than implementing the penalty for non-compliance provided for in Section 3A of the statute – which is the loss of the grants enumerated in Section 3A. All that is in 3A if you bother to actually read it. And, that’s the central issue in the matter of Attorney General v. Town of Milton and Joe Atchue, in his official capacity, SJC No. SJ-2024-0078. In that matter, Supreme Judicial Court Associate Justice Serge Georges wrote “I believe that this case raises novel questions of law which are of public importance, and which are time sensitive and likely to recur, i.e., the scope of a municipality’s legal obligations under G. L. c. 40A, § 3A, and under the related guidelines, and whether the attorney general has authority and standing to enforce compliance with the same. Therefore, in my opinion, the matter would best be decided by the full court, and as noted above, I hereby reserve and report this case for its determination” (emphasis added). Please, Ms. Noonan, read this article and stop telling us “the law is the law.”
The principle of what branch of government is responsible for interpreting law goes back to the case of Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). Then-Chief Justice John Marshall wrote for the majority that “(i)t is emphatically the province and duty of the Judicial Department to say what the law is.” So, when the Select Board chair, any of its members, or anyone else for that matter posit the phrase “the law is the law,” you can give them a copy of this decision from 1803. While they are reading that decision, know that the Massachusetts Supreme Judicial Court is in the process of making that determination. It is not within the constitutional wheelhouse of the executive branch or the legislative branch – and it is certainly not up to Ms. Noonan – to say what the law is. That is in the exclusive purview of the judicial branch. And, they’re working on it.
In conclusion, there is no misinformation in this letter.
It is fact that opponents of this measure have thought this through and have the intellectual capacity to make informed decisions.
It is fact that The Boston Globe reported that experts state this law won’t solve the problems proponents of the law it will solve.
And, it is fact that the Massachusetts courts are in the process of determining what this law is.
While the proponents of 3A are entitled to their own opinions, they are not entitled to their own facts.
John G. DiPiano
Trager Road