In an eagerly anticipated decision issued this morning, the Massachusetts Supreme Judicial Court (SJC) has ruled that the MBTA Communities Act (the Act), which former Governor Charlie Baker signed into law in early 2021, is constitutional, and that the Attorney General has the authority to enforce it, but the detailed guidelines that the Executive Office of Housing and Livable Communities (HLC) adopted to implement the Act are invalid.

The Act requires cities and towns that benefit from mass transit services provided by the MBTA (dubbed “MBTA communities”) to adopt zoning regulations that provide for “at least one district of reasonable size” located within one-half mile of an MBTA facility in which multi-family housing can be built as of right. After passage of the Act the HLC spent two years developing what it referred to as “guidelines” fleshing out exactly how the Act would operate. In early 2024, after residents of the Town of Milton (Town) voted down a proposed zoning bylaw that would have complied with the HLC’s guidelines, the Attorney General brought suit against the Town.

In today’s decision in Attorney General v. Town of Milton, the SJC rejected the Town’s claim that the Act is unconstitutional because it violates the separation of powers doctrine by vesting in the HLC – an executive branch agency − the power to require what the Town characterized as “transformative zoning changes.” The SJC found this delegation of authority to “subject-matter experts” at the HLC to be both routine and necessary; the court observed that to deny this power “would be to stop the wheels of government.” The court further held that the Act provides an “intelligible principle” to guide the HLC’s exercise of its authority, as required under existing law. The SJC also swatted down the Town’s arguments that the Attorney General lacks authority to enforce the Act because (1) the Act does not expressly confer such authority, and (2) the Act already provides consequences for noncompliance, namely, the potential loss of certain state funding. As to the first argument the court simply noted that the Attorney General has “broad authority to act in the public interest”; as to the second argument the court observed that the Town’s position would thwart the Legislature’s intent “by converting a legislative mandate into a matter of fiscal choice.”

While the Town’s challenges to the constitutionality of the Act and the Attorney General’s enforcement authority failed, the Town’s challenge to the HLC’s “guidelines” carried the day. The Town argued that what the HLC characterizes as “guidelines” are plainly “regulations” subject to the Administrative Procedure Act (APA). While the Act specifically directs the HLC to adopt “guidelines,” the SJC found that those guidelines fall easily within the broad scope of the term “regulations” as defined by the APA. Because they’re subject to the APA, the HLC’s guidelines could only be adopted by following the APA’s required procedure, which includes notice to the Secretary of the Commonwealth and the preparation and filing of a statement considering the impact of the regulation on small business. Because the HLC admittedly failed to comply with either requirement, the SJC concluded that the guidelines “are legally ineffective and must be repromulgated in accordance with [the APA].” The court rejected the Attorney General’s argument this failure was harmless because the HLC substantially complied with the APA’s requirements; the court ruled that strict compliance is required.

The SJC’s decision in Attorney General v. Town of Milton resolves an important legal question by firmly upholding the validity and enforceability of the MBTA Communities Act. While the Town has won a battle in that the HLC’s guidelines are presently unenforceable, this victory is likely to be short-lived. Repromulgating the guidelines in compliance with the APA is a procedural hurdle that can easily be surmounted, and in the meantime, Governor Maura Healey has already indicated that she plans to issue emergency regulations that she believes will address the SJC’s concerns, which will be effective immediately.