Milton housing lawsuit headed to SJC
Attorney General Andrea Campbell’s lawsuit against the Town of Milton for violating a new state housing law will be heard before the Supreme Judicial Court this year, a justice ruled Monday.
The move is a win for Campbell as she seeks an openand-shut ruling against Milton for failing to comply with the MBTA Communities law, which requires 177 towns served by the T to create new zoning for multifamily housing. A verdict by the full SJC, Campbell’s office and housing advocates hope, will send a message to other towns that MBTA Communities is not optional, and towns that try to resist may be sued into compliance.
Campbell’s office sought to have the case heard in the state’s highest court, as soon as possible, so that towns do not pause their planning efforts to see how the case plays out. An SJC ruling would provide final answers to some key questions surrounding the law. Sending the suit to Superior Court or Land Court could have extended the legal battle and left room for appeals.
Justice Serge Georges Jr., in his ruling, agreed with Campbell’s office that the case should proceed swiftly and that it raises legal issues that should be decided by the state’s highest court.
“I believe that this case raises novel questions of law which are of public importance, and which are time sensitive and likely to recur,” he wrote.
But Georges’s ruling does present a problem for the state. He scheduled oral arguments in October, not in May, as Campbell’s office had hoped. That means a final ruling may come amid, or even after, fall Town Meeting season, when some 130 municipalities are due to consider zoning that the law requires be completed by the end of this year. That could present huge logistical challenges, depending on how the court rules.
Several housing advocacy and planning groups wrote to the court last week urging Georges to put the case on the SJC docket for its May seating, fearing a ruling late in the year would leave towns little time to respond.
“Without a decision from the court sufficiently early in this calendar year, impacted municipalities will have no clear direction as to how to proceed with critical local decisions related to this statute,” wrote the Massachusetts Association of Regional Planning Agencies. “Any delay on this court’s part could impact the progress made by municipalities who are already trying to comply with the law.”
Attorneys for the town of Milton argued last week that expediting the case to May would prevent the town from mounting a thorough legal defense, calling the proposed timeline “patently unrealistic” and “wholly unnecessary.”
Georges appeared to agree and said the court might not have time to handle the suit in May due to ballot question cases the SJC must decide in that seating.
How the SJC ultimately rules may help shape land-use rules across the state for years to come. Milton was supposed to pass a state-approved zoning plan by the end of 2023, and its Town Meeting did so in December, but a group of residents triggered a referendum that overturned that plan.
And while town officials have said they want to comply with the law, their lawyers appear to be readying a defense that will question whether MBTA Communities is legally enforceable at all, and if the state has the power to dictate local zoning rules.
Some other towns where officials and residents are outraged by the idea of state-mandated zoning and are latching onto those arguments as well, claiming zoning is a municipal power, despite several longstanding state laws that override local zoning discretion. (Legal experts have said recently that zoning is a state power.) Those towns see Milton as a rallying cry to defy the law.
The SJC will provide definitive answers. Georges said in his ruling that “the scope of a municipality’s legal obligations under [MBTA Communities] and under the related Guidelines, and whether the Attorney General has authority and standing to enforce compliance with the same,” are all questions for the court to ponder.
“We are pleased that the single justice has recognized that this case presents an important legal question for the full Supreme Judicial Court to decide in the near future,” Campbell’s office said in a statement. “In the meantime, we continue to expect that communities take the required steps to comply with the law, and we commend the vast majority who are already doing so.”