AG cracks down on T zoning laws
Attorney General Andrea Campbell said her office will sue cities and towns that fail to comply with the MBTA communities zoning law, adding to penalties that already excluded those municipalities from state funding opportunities.
In a Wednesday advisory, Campbell said compliance with the law, signed by Gov. Charlie Baker in January 2021, is mandatory. Offenders could be slapped with civil enforcement action by the AG’S office, she said, and risk liability under federal and state fair housing laws.
“Compliance with the MBTA communities zoning law is not only mandatory, it is an essential tool for the commonwealth to address its housing crisis, along with our climate and transportation goals,” Campbell said in a statement.
“While the housing crisis disproportionately affects communities of color and poor, working families, it threatens all of us along with our economy, and thus requires all of us to do our part, including ensuring adequate development of affordable, transit-oriented housing for our residents and families.”
Under this law, all MBTA communities are required to allow at least one zoning district “of reasonable size,” in which multi-family housing is permitted “as of right,” generally half a mile near a transit station, the advisory stated.
Four communities, Berkley, Holden, Marshfield, and Middleborough, are in non-compliance with the law, according to a spokesperson for the Department of Housing and Community Development.
“Any MBTA community not in compliance with the law will lose eligibility for several state grant programs, including Massworks and the Housing Choice Initiative, both of which provide millions of dollars in funding to communities across the state annually,” the DHCD spokesperson said.
“Non-compliance will also be taken into account for other state grant programs.”
In her advisory, which Campbell said was partly aimed at clearing up confusion over the new law, the attorney general stated, “Importantly, MBTA communities cannot avoid their obligations under the law by foregoing this funding.”
Further, the law does not provide for any opt-out mechanisms, Campbell said.
This was news to Holden Town Manager Peter Lukes, who did not think the law was mandatory, and had made the decision to forego state funding, rather than comply with the transit-oriented zoning requirement.
This Worcester County community lacks MBTA service, Lukes said, so the general feeling in town government was that a zoning bylaw requiring housing near a T station would not apply there.
“We assumed that it was something that if we do not comply with, we will not be able to avail ourselves of some of the grant programs as it’s written, the law’s written,” Lukes said. “Therefore, we’re just going to forgo the grant opportunities and go on our merry way.”
He said the town had been waiting for the attorney general’s formal advisory on the matter, and now that it’s been released, “we’re just trying to figure it out with the assistance of counsel.”
“Right now, we’re evaluating the situation and deciding how we want to proceed basically,” Lukes said. “I feel that the advisory opinion is incorrectly interpreting the law as it stands. But the question is, do we have the desire to keep fighting it legally, and do we have the financial ability to fight the state legally in court?