Understanding the Massachusetts Supreme Judicial Court’s Decision in Attorney General v. Town of Milton

By: Sean Higgins and Cayla Nyante Brown

Signed into law in January 2021, the Massachusetts Bay Transportation Authority (MBTA) Communities Act (the Communities Act) requires all 177 cities and towns with access to MBTA public transportation (e.g., commuter rail, subway, bus, or ferry) to designate a specific zoning district where multifamily housing is permitted “as of right,” meaning without any additional approvals needed, to increase housing availability near transit options.

In February of 2024, residents of the town of Milton, which has four MBTA stations along the Mattapan Line voted down a proposed zoning scheme to satisfy the requirements of the Communities Act, thus setting the stage for a showdown between the Commonwealth of Massachusetts (the Commonwealth) and the affluent Boston suburb.

Before the town vote, Milton took steps to comply with the Communities Act. Between August of 2022 and December of 2023, the town’s Planning and Select Boards engaged in discussions about the Communities Act, and the town applied for and received grant money, which it used to hire a planning and design consultant to create a zoning plan. In January of 2023, Milton submitted its “action plan” to the Executive Office of Housing and Livable Communities (EOHLC), indicating that it sought to be considered in “interim compliance” with the Communities Act.

On 11 December 2023, at a special town meeting, Milton approved a proposed zoning bylaw (Article 1) that would have complied with EOHLC’s guidelines. However, pursuant to the town charter, enough of the town’s voters petitioned to have Article 1 submitted to a town-wide referendum vote. As a result, less than three weeks after the initial vote approving the bylaw, the Select Board voted to schedule a referendum for February of 2024. Before the referendum occurred, both EOHLC and the attorney general sent letters to town officials with notice of their intent to enforce funding penalties and take legal action should Milton fail to comply with the Communities Act. The referendum proceeded on 14 February 2024, and voters rejected the proposed zoning bylaw by a margin of approximately eight percentage points.

Shortly after the referendum, the attorney general filed a complaint against the town before a single justice of the Supreme Judicial Court (SJC) seeking declaratory and injunctive relief to enforce compliance with the Communities Act, as required under EOHLC’s guidelines. Milton filed an answer denying that it was in violation of the Communities Act and filed a counterclaim against the attorney general and EOHLC seeking declaratory relief. The case was then referred to the full SJC for consideration and decision.

Before the SJC, Milton asserted several key arguments in defense of its decision not to comply with the Communities Act:

1. Constitutional Challenge: Milton argued that the Communities Act violated the separation of powers principle in the Massachusetts Constitution, asserting that the law improperly interfered with local zoning authority, which traditionally resides with individual municipalities. Milton argued that the state did not have the constitutional power to mandate local zoning decisions regarding the creation of multifamily housing near transit stations.
2. Nondelegation of Authority: Milton also argued that the attorney general did not have the authority to enforce the Communities Act against municipalities because there was no explicit delegation of enforcement authority to the attorney general in the statute.
3. Permissible Noncompliance: Milton also argued the Communities Act’s requirements were overly burdensome or inappropriate for the town, potentially conflicting with its local housing and zoning policies, thus making its noncompliance permissible.
4. Invalidity of EOHLC Guidelines: Finally, Milton further argued that the guidelines issued by EOHLC were unenforceable because they were not properly promulgated according to the Administrative Procedures Act (APA).

Despite these arguments, the SJC ruled against Milton, confirming that the Communities Act was constitutional, the attorney general had enforcement authority, and the town must comply with the law’s requirements for creating zoning districts that permit multifamily housing. In upholding the Communities Act, the SJC concluded that the legislature made a fundamental policy decision regarding housing creation and provided adequate direction for implementation. Though it largely sided with the Commonwealth, the SJC did invalidate certain guidelines issued by the EOHLC, ruling they were not properly promulgated according to the APA. As a result of this ruling, Milton must now comply with the Communities Act by adopting zoning changes that permit multifamily housing near its MBTA transit stations.

For real estate developers and investors, the SJC’s decision in Attorney General v. Town of Milton confirms that municipalities subject to the Communities Act will have to ensure compliance with the statute in the near future. The required implementation of zoning changes presents new opportunities for multifamily housing development near MBTA transit stations throughout the Commonwealth.