AG sues towns flouting MBTA Communities law

Following through on a threat she leveled last year, MA Attorney General Andrea Campbell is suing nine towns for their refusal to comply with the MBTA Communities multifamily housing law. Campbell is seeking a court order declaring that each community must create a zoning district that complies with the law and submit a district compliance application to the state housing office.

“When local communities refuse to allow new housing, housing prices everywhere across the Commonwealth increase,” Campbell said in a press conference on Thursday announcing the suit. “They thwart a family’s ability to access all the benefits that stable housing provides.”

The 2021 housing law requires cities and towns near MBTA service to zone for a district of reasonable size in which multi-family housing is permitted as of right. The law, which Beacon Hill leaders have said is crucial to addressing the state’s acute housing shortage, has caused deep division in municipalities across the region. It has set off bitter showdowns in local elections between supporters and opponents of the statute, and a legal challenge over the act is set to reach the state’s highest court for the second time.

Campbell’s said her preference was not to bring a lawsuit, but with a ruling in her pocket from the Supreme Judicial Court last year that the law is mandatory and enforceable, she said she feels compelled to act. “If any town passes compliant zoning, our lawsuit goes away,” Campbell said. “So we’re willing to work with every community to bring them into compliance and to be reasonable and flexible.”

The Executive Office of Housing and Livable Communities reports 165 out of 177 MBTA Communities have come into compliance. Campbell is suing Dracut, East Bridgewater, Halifax, Holden, Marblehead, Middleton, Tewksbury, Wilmington, and Winthrop in Suffolk Superior Court.

These nine communities were required under new regulations to have compliant zoning districts approved by July 2025.

The MBTA Communities housing law was passed under Gov. Charlie Baker’s administration, and Gov. Maura Healey took up the cause as a critical tool to address the state’s crippling housing shortage when she took office three years ago.

A report released Wednesday by Boston Indicators – the research arm of The Boston Foundation – found that nearly 7,000 housing units resulting from the new housing law are now in the permitting, construction, or occupancy pipeline in 34 eastern Massachusetts communities. Most of the units, which span about 100 projects, are concentrated in a few large developments.

Joe Aiello was one of the pro-MBTA Communities members of the Winthrop Town Council to lose his reelection bid in November amid a heated compliance debate that split the North Shore town of 20,000 people.

He said town leaders, who maintain the law is an improper intrusion on local control, are defying it at this point on principle, not necessarily because of its actual impact. Aiello, who is the former chair of the MBTA’s oversight board, said Winthrop has a reasonable plan before it that would bring the town into compliance with the law. “There has not been a dissatisfaction with the plan in particular, but people just don’t think we ought to comply,” he said on Thursday.

Aiello said Campbell gave lots of notice that compliance with the new law was not optional. “I would characterize her approach to this as patient,” he said. “She sent numerous letters to municipalities on the seriousness with which she takes this.”

The attorney general’s office had been warning about further legal action for the better part of a year.

In an advisory to noncompliant towns last July, Campbell’s office noted that January 2026 would mark five years since the act’s passage into law.

“By that point, every MBTA Community will have had ample time – and considerable state support – to establish the legally mandated zoning,” her office wrote. “Because facilitating additional residential housing development is a foremost state priority – in the interests of those who reside in the Commonwealth and those who hope to, and essential to the success of our state economy – five years is more than sufficient time for each community to have achieved compliance.”

Zoning is just a first step to new housing construction, she noted, but a necessary staring point. If municipalities resisted compliance with the zoning law, the office said, “in January 2026, the Attorney General is prepared to bring an enforcement suit against any MBTA Community that has failed to both adopt the required zoning and apply for a determination of district compliance from the Executive Office of Housing and Livable Communities.”

Campbell can bring the vast power of her office to bear on recalcitrant towns if her suit is successful. The Supreme Judicial Court ruled one year ago that the law was consitutional and mandatory, and affirmed that Campbell can sue to enforce it.

The attorney general is asking the court to declare that the towns have failed to comply with the act and must amend their zoning by-laws and must secure a determination of compliance from the state housing office. She is also asking for an injunction “reasonably tailored to achieve each town’s compliance” and any other relief that the court deems appropriate.

This kind of relief could range from appointment of a special receiver to draw up zoning for the town, or implementing some sort of “builder’s remedy” that would allow new construction regardless of current zoning until the town complies. Campbell’s office did not indicate in its filing what specific remedies it sought, and the attorney general said her office is bringing the same “reasonableness” posture to this suit as the suit against Milton for blowing past a compliance deadline and refusing to rezone.

“Our posture is the same, which is to get them to understand unequivocally that the law is mandatory, and to hopefully use the power of this lawsuit to get them to come into compliance and then to work with them to build housing,” Campbell said.

The Massachusetts tradition of local zoning control has clashed with state housing priorities since the controversial housing law was passed, with dozens of municipalities forcefully resisting compliance as long as possible under an array of arguments. They claim that zoning is a local power, that the law itself is unconstitutional and unenforceable by Campbell, and that it represents an unacceptable “unfunded mandate” by creating potential infrastructure and cost burdens for the towns.

The SJC waved away the first two arguments in a decision last year on the Milton suit. “The town’s interpretation effectively nullifies the power afforded to the Attorney General,” wrote Chief Justice Kimberly Budd, noting that the AG has “broad authority to act in the public interest.”

The unfunded mandate question is already set to go before the high court this spring, after a lower court determined that a collection of towns did not specifically lay out how the MBTA Communities law would create impermissible costs without state funding to address them. Two of the towns involved in that suit – Holden and Middleton – are now being sued by Campbell for noncompliance.

Holden town manager Peter Lukes said the board of selectmen is scheduled to vote on Monday whether to hold a special town meeting next month to consider a zoning plan that would comply with the law.

Lukes said the upcoming vote was not prompted by Campbell’s suit, and he took a sarcastic dig at the AG over the litigation. “We find solace in assuming that there must be a massive lack of crime or more serious legal matters for the attorney general’s office to be pursuing,” he said in a statement.

Not all noncompliant towns are being targeted by the lawsuit. Freetown has a zoning meeting coming up, Campbell noted, and “we wanted to be fair to them” by giving a chance for compliance. Carver and Rehoboth faced an end-of-year deadline, and Campbell said, “we want to give them a little bit more time to create a compliant zoning district.”

The move is already generating pushback from Republicans. Gubernatorial hopeful Mike Kennealy, who was housing secretary for Baker as the MBTA Communities law took shape, said the suit is effectively “state government railroading municipalities while simultaneously underfunding” them Campbell and Healey, he said, “have completely weaponized the MBTA Communities Act against our cities and towns.”

Campbell on Thursday said repeatedly – as has the governor’s housing office – that the preference is not to chase this through the courts with a prescriptive zoning plan in mind.

“The lawsuit is essentially the hammer, and we don’t start with the hammer,” Campbell said. “We start with conversation and working in collaboration.”

This story was updated January 29 at 1:30 p.m. with additional comment.

This article first appeared on CommonWealth Beacon and is republished here under a Creative Commons Attribution-NoDerivatives 4.0 International License.