Wanted: a clear ruling from the SJC on new housing law

The wheels of justice may turn slowly, but thanks to a judge’s decision to expedite judicial review of the new MBTA Communities law, they’ll at least turn Red Line slow, not Green Line slow. On Monday Justice Serge Georges Jr., agreeing to a request from Attorney General Andrea Campbell, fast-tracked the lawsuit that Campbell recently filed against the Town of Milton. That lawsuit seeks to force the town to comply with the law, which mandates that Milton and scores of other municipalities in Greater Boston served by the T allow more desperately needed housing.

Fast-track, of course, is a relative term. Georges didn’t schedule the case for May, as Campbell had requested, instead pushing consideration to October. It could then be months before the court renders a decision. But it will be worth the wait if the court delivers a clear, unambiguous verdict that puts to rest questions about the law’s constitutionality and enforceability.

The backstory: For decades Boston’s suburbs have placed limitations on how much housing can be constructed within their borders, zoning restrictions that have played a major role in creating the region’s current housing shortage. The law, signed in 2021, requires towns in the MBTA service area to designate at least a portion of their town for more growth. Most municipalities subject to the law have complied; some have even gone beyond its requirements. But voters in Milton rejected a rezoning in February, setting up the current legal showdown with the state.

The need for the law is abundantly clear. As a Commonwealth, Massachusetts needs more housing, and especially more lower-cost housing. But left to their own devices, individual towns have no real incentive to allow it. By rejecting the rezoning, Milton voters inadvertently demonstrated just why the law was so necessary in the first place: Suburbs are not going to open up unless they’re forced to.

The question for the court, though, is whether doing so is legal. In court filings, Milton has previewed some of the arguments that it may make against the law. It may assert that Milton was wrongly classified as a “rapid transit” community, a designation that meant it was subject to higher requirements than communities that have only commuter rail service. It could challenge the attorney general’s standing to enforce the law. Most ominously, it could challenge the constitutionality of the law itself, arguing that the home rule amendment to the state constitution bars the Legislature

By rejecting the rezoning, Milton voters inadvertently demonstrated just why the law was so necessary in the first place: Suburbs are not going to open up unless they’re forced to.

from mandating changes to local zoning.

Now, far be it for us to assess the legal merits of any of those arguments. But any challenge to the law’s constitutionality would be especially alarming, since it would seemingly call into question any state effort to regulate local zoning. If the court were to find that the home rule amendment passed in the 1960s precludes laws like the MBTA Communities act, that conclusion would not only overturn precedent (“[t]he adoption of the Home Rule Amendment has not altered the Legislature’s supreme power in zoning matters,” the court ruled in 1973) but also would kneecap the state’s ability to combat the housing shortage.

Meanwhile, other communities are watching. Although most towns continue to comply with the law, the longer that legal uncertainty lingers, the more emboldened its critics at the local level will become. In sending the question to the SJC, Georges wrote “this case raises novel questions of law which are of public importance, and which are time sensitive and likely to recur.” That’s all true and argues for a swift and conclusive resolution to the dispute. Hopefully, the court will side with Campbell and declare that Milton needs to allow more housing. But however they rule, the justices should provide clear guidance on whether the 175 communities subject to the law have to follow it — and what tools the state has at its disposal if they don’t.