To the editor:
There appears to be a lot of fearmongering going on with respect to voting compliance with G.L. c. 40A, Sec. 3A et seq.
I’d like to speak to that issue.
It appears correct that the town could forfeit grants identified under the statute. To date I have not encountered any clarity in what the amount of those grants at stake ACTUALLY are. I hear about the seawall. Now, we had seawalls long before we had grants, so there is precedence for figuring this out on our own. In addition, I harken back to the days of the 55 mph speed limit rules. The Fed penalized states that did not adopt a 55 mph speed limit and my memory is that there were states that did not adopt a maximum speed limit of 55 mph. Correct me if I am wrong on this. Also, to my memory, those states, nevertheless, still had highways. They, too, figured it out. And, the 55 mph mandate has gone the way of the dodo bird.
Next is the lawsuit dragon. If we don’t comply we could be sued. Also true, but I think highly unlikely.
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPREME JUDICIAL COURT FOR SUFFOLK COUNTY No. SJ-2024-0078 ATTORNEY GENERAL vs. TOWN OF MILTON and JOE ATCHUE, in his official capacity, is the case now pending on the issues raised in the G.L. c. 40 A compliance vs. non-compliance debate.
Let’s demystify this case (lawyers in town weigh in if you have the inclination).
Now — G.L. c. 40A provides a remedy to the state in the event that a town does not comply with the statute. The sole and exclusive remedy is loss of the grants identified in the statute.
That’s it.
So, Milton opted out. Good for Milton — we should do the same.
The AG knew the state was in trouble and had to engage in lawfare. So, the AG sued Milton in Superior Court asking for equitable relief in the form of an injunction against Milton’s Zoning Board enacting or enforcing any zoning regulations contrary to G.L. c. 40A.
Think about that for a minute. The state (executive branch) is asking the court (judicial branch) to take away the right of the town’s duly elected or appointed board members to do the will of the voters of the town.
The case against Milton has not contested facts. The statute in question says what it says, and Milton told the Healey-Driscoll administration and Beacon Hill to take the first exit available to them and not let the door hit them on the backside on the way out.
Again, good for Milton. We should do the same.
The AG, wanting to be as big and scary as possible, also asked for prospective relief in the event that the court decides in favor of the state and grants and injunction but that independently oriented cities and towns decide not to obey it.
The AG asks for the appointment of a special master (I am a special master in a case right now as a matter of fact).
A special master is a lawyer appointed by the court to do what the master believes is correct in the matter at hand — subject to final determination by the court if either party claims a grievance with the master’s decision.
So, the AG is asking the judiciary to appoint someone in the future (just someone in general) to take the issue over for the aforementioned potentially future recalcitrant town or city.
And, to pile on, fine the future noncompliant town.
None of these remedies are authorized in G.L. c. 40A and courts routinely deny prospective relief — which asks the court to react to a hypothetical which, by definition of that terms, hasn’t actually happened yet.
I could be proven wrong, but in my opinion this lawsuit by the AG has all the features of a full diaper, including the bouquet.
There’s more — and this is the really important part.
The Superior Court judge, knowing that this case is a constitutional and legal morass that was going to repeat itself from county to county, go upon appeal, and take years to determine with potentially disparate results from court to court, reported the case to the Supreme Judicial Court of Massachusetts.
The SJC, being the highest court of the Commonwealth, binds all lower courts, bodies, towns, and persons with its decision.
Oral argument, according the to the Superior Court case report, is supposed to occur in October 2024.
So, again in my opinion, the Planning Board should recommend that the town defer compliance until the SJC determines the issue.
They probably won’t do that. So, we should vote this down.
And, if we are sued, we can ask the court to consolidate the case with the Milton case because the issues are exactly the same. That should not cost much.
Here is the March 18, 2024 decision from Suffolk Superior Court Associate Justice Georges:
https://tinyurl.com/f65xyknm
The lingering questions I have are why do I have to do this as opposed to our elected board in cooperation with town counsel? Why is this not being talked about in terms of what is actually happening rather than as a scare tactic as to the evil that may befall our community if we choose to exercise our Home Rule rights to determine the nature of our own land use?
And, by the way, how many towns are enough to alleviate the alleged “housing crisis” and why is no one asking that question? Do all the cities and towns on the G.L. c. 40A hit list have to participate or is the participation of a portion of the list sufficient? How many housing units are necessary to address the stated concern.
No one is telling us. And that should tell you all you need to know about the law itself.
Vote no on Article # 36 on the town warrant in May 2024 and defeat proposed zoning bylaw article 200-43.
John G. DiPiano
Marblehead