Massachusetts’s Executive Office of Housing and Livable Communities (EOHLC) issued emergency guidelines for the implementation and enforcement of the MBTA Communities Act, following on the heels of the Massachusetts Supreme Judicial Court’s much anticipated January 8 ruling holding that the Act (Massachusetts General Laws Chapter 40A §3A) is both constitutional and enforceable by the Attorney General. That enforcement is not limited merely to the statutorily prescribed penalties for non-compliance, such as loss of grant access. Rather, the court affirmed the Attorney General’s broad authority to compel compliance with statutory law. The new regulations extend the deadline for communities not already in compliance to meet Act compliance obligations.
The MBTA Communities Act was enacted in 2021 to address a statewide housing crisis. The law compels municipalities with Massachusetts Bay Transportation Authority (MBTA) subway, bus, and commuter rail service in the municipality or an adjacent municipality to adopt zoning ordinances or bylaws permitting as-of-right development of multifamily housing within not more than 0.5 miles from public transportation. EOHLC adopted guidelines specifying the details and mechanisms of compliance with the law.
The Town of Milton first adopted, but then rejected by referendum vote, zoning bylaw amendments seeking to timely comply with the law. After the referendum vote, the Massachusetts Attorney General filed a complaint against the Town of Milton seeking to compel compliance with the MBTA Communities Act. Consequently, the Supreme Judicial Court was faced with determining three separate issues: (1) whether the Act is valid and constitutional; (2) whether the associated regulations are valid and constitutional; and (3) whether the Attorney General has the authority to enforce the Act and the associated regulations.
Even while upholding the constitutionality of the MBTA Communities Act and the Attorney General’s authority to enforce them against individual municipalities, the Supreme Judicial Court found that the EOHLC guidelines were not properly adopted under the Administrative Procedure Act (Massachusetts General Laws Chapter 30A). Accordingly, the Supreme Judicial Court ruled that the EOHLC guidelines were not legally effective and must be re-promulgated (either in their current form or as EOHLC may otherwise elect) pursuant to the strictly required process of the Administrative Procedure Act.
The EOHLC filed the emergency rules with the Secretary of the Commonwealth on January 14, 2025. Substantively, the emergency regulations remain consistent with the initial regulations. Communities already deemed by the EOHLC to be in compliance with the original MBTA Communities Act and Guidelines are not affected by the emergency regulations. Rather, the rule provides non-compliant communities additional time to come into compliance with the law even if they did not meet the original regulations deadlines. Specifically, communities now have until February 13, 2025 to submit an action plan on an EOHLC form to come into interim compliance, and until July 14, 2025 to demonstrate to the EOHLC full compliance for EOHLC confirmation. Although the court declined to decide whether the existing guidelines are consistent with the MBTA Communities Act, the court has made clear that the statutory obligation is enforceable. Accordingly, EOHLC has allowed for a public comment period for communities to provide their feedback before final regulations are put into place.
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