Massachusetts Attorney General Andrea Joy Campbell's lawsuit against the Town of Milton took center stage at the state's highest court Monday.
The lawsuit came after voters rejected a voting plan that would have complied with a state law requiring more multi-family homes built near MBTA stations.
Lawyers representing the town of Milton and the state presented their oral arguments before the Supreme Judicial Court Monday morning.
Milton is really the first community to challenge the MBTA Communities Act – and then be sued by the Attorney General for doing so.
Back in February, voters in Milton shot down a zoning plan that could have cleared the way for hundreds of new housing units.
The MBTA Communities Act aims to solve the state’s housing shortage by compelling cities and towns to make it easier to build new multi-family housing near public transportation.
In all, 177 communities that the state deemed have varying levels of access to the T are covered by the law.
Attorneys for the town of Milton argue the state housing guidelines are excessive, and that Milton should not be considered a “rapid transit community” -- which carries a higher zoning requirement -- because the Mattapan Trolley that runs through town is too slow to be considered “rapid.”
They also argue Campbell overstepped her authority because they believe the Legislature specifically limited the punishment for non-compliance to loss of state funding.
“I’d like to start with the question of the attorney general’s authority even to bring this action to compel compliance with section 3A. Under this court’s precedence, the attorney general lacks the ability to do so because the statute specifies a different consequence for non-compliance," Kevin Martin, attorney for the Town of Milton, argued.
Campbell insists the law does not allow for communities to opt out of the new zoning requirements, and she’s seeking court-ordered compliance.
Over the course of nearly an hour, six of the seven SJC justices (Justice Bessie Dewar, the former state solicitor, did not participate) heard from both sides and were active in their questioning. The primary line of argument related to Campbell's powers to enforce the law beyond what is specifically called for in the law.
"Towns can't vote not to comply with state laws, right? So if you have the authority in the AG's office ... then the question is, are the remedies exclusive? That's really the only issue we have," Justice Scott Kafker said Monday.
Assistant Attorney General Eric Haskell argued that the remedies detailed in the law are not exclusive, and agreed with Kafker's contentions that the loss of grant funding is largely a "paper tiger" and that "without your ability as the AG to enforce this, there's no real remedy here." Haskell said that the last time Milton got any money from one of the specified grant programs was $1 million it received through the MassWorks program in 2012.
"Our view is that the Legislature included that in there so that municipalities would know there is going to be a concrete consequence of not complying, and it's going to be automatic, and it's going to be swift, and it's going to be certain," he argued Monday. "But it does not in any way take the place of the power of the attorney general to enforce this mandatory state law."
The high court also spent time unpacking Milton's argument that it is not in violation of the MBTA Communities Act because the guidelines the Legislature required the Executive Office of Housing and Liveable Communities to produce were not properly promulgated. The law itself mandated EOHLC to "promulgate guidelines to determine if an MBTA community is in compliance with this section," and Milton argues that the guidelines are really regulations that should have been promulgated following the specific process laid out in Chapter 30A.
Justices Frank Gaziano and Gabrielle Wolohojian both raised with Haskell the possibility that the court could decide that the guidelines as issued by EOHLC are unenforceable because they were not put into effect using the proper process. Wolohojian pressed Haskell on how the state's argument that Milton violated the law when it missed its deadline to comply would be affected if the court were to effectively dismiss the guidelines that created the deadline.
"I think if the decision from this court comes out in a way that HLC needs to repromulgate the guidelines, it would be HLC's choice in that situation what to do by way of deadlines. I think it's safe to assume they couldn't specify a deadline in the past," he said. Haskell argued, though, that the court would still need to settle the first question of the AG's authority to force the town into compliance.
Wolohojian didn't entirely agree. She said that the enforcement question "wouldn't apply to Milton, though" if the guidelines were deemed unenforceable.
"If I understand correctly, the point at which Milton, in your view, violated the statute, was when it didn't enact a zoning plan by a certain date. But if the certain date only comes from the guidelines and the guidelines need to be done over then, then what is there to enforce against Milton?" she asked.
Shortly before the SJC hearing, Campbell spoke about the potential ripple effect across Massachusetts, if the justices rule against the state.
“It will not only set us back in terms of addressing our housing crisis, it will do significant damage to the rule of law and how we see it, how we view it, and how we depend upon it to allow one municipality for example to say that they don’t want to comply," Attorney General Andrea Joy Campbell said in a press conference Monday morning.
We likely won’t have this resolved anytime soon -- because the SJC typically takes several weeks to issue its ruling.
