OPPONENTS OF A PLAN to rezone the affluent Boston suburb of Milton spent weeks urging town voters and officials to pump the brakes while a court considered a suit challenging the MBTA Communities housing law.
All the way up to a special Town Meeting in mid-June, a set of residents, planning board members, and warrant committee members tried to hold off a proposal that would allow for the potential to add 25 percent more total housing units, required by the state because of Milton’s proximity to public transit. Less than 10 days after Town Meeting voters moved ahead with a plan to comply anyway, Superior Court Judge Mark Gildea offered another firm rebuke to the naysayers.
The 16 taxpayers who brought suit to halt local enforcement of the controversial MBTA Communities multi-family housing law lacked standing, Gildea found. The plaintiffs also did not convince the court that the state’s designation of the town as a “rapid transit community” was unreasonable, Gildea wrote in a crisp nine-page opinion handed down on June 26.
He rejected the taxpayers’ request for an injunction and granted the state housing office’s motion to dismiss the suit.
The conclusions Gildea reached in a June 6 order considering a bundle of town complaints about the MBTA Communities law “apply equally here,” he wrote, reiterating that the housing law is not an unfunded mandate. The taxpayers offered only speculative costs that they would have to bear if the town complied, Gildea said. The MBTA Communities law lays the groundwork for but does not require new construction, and Milton always has the option of pursuing state grants that already exist to fund infrastructure associated with new housing, he added.
As to the third-rail of the entire Milton debate – whether the quaint Mattapan High-Speed Trolley should count as “rapid transit” in the same way that MBTA subway lines or the Silver Line bus does – Gildea needed barely 100 words to dispense with the matter.
In the brief MBTA Communities statute, lawmakers made no mention of the Mattapan trolley, which the taxpayers argued meant that Milton is not a rapid transit community. Rather, they said, their more distant proximity to commuter rail or Red Line subway service should make them an “adjacent community.” That designation would require rezoning for only 10 percent more units – even less than the 15 percent required for commuter rail communities.
Gildea agreed with the Executive Office of Housing and Livable Communities that “the mere use of a ‘rapid transit’ category is not arbitrary and capricious simply because that category is not found in [the law],” he wrote. The specific language of an “adjacent community” is also not found in the law, he added.
The way that the housing office created its four community categories applied its “substantive expertise” to tailor the regulations to fit the real-word conditions of each MBTA community, Gildea said, just as the state Supreme Judicial Court ordered in January.
“For a second time this month, the courts affirmed the intent of the MBTA Communities Law, which is to increase housing production to address one of the greatest challenges facing the people of Massachusetts – high costs,” said Ed Augustus, secretary of the Executive Office of Housing and Livable Communities, in a statement Friday. He noted that nearly 80 percent of MBTA Communities “have already said yes to multifamily housing to bring down costs for all residents, and we continue to work closely with communities that have yet to do so.”
As Gildea is the judge tasked with overseeing the many MBTA Communities lawsuits, his Thursday ruling might yet be appealed but severely narrows the likelihood that any of the other suits before him will be positively received at the Superior Court level. As lawmakers suggested during the Milton debate, this dispute may now rest in the hands of the same legislators who signed off on the sweeping policy change in the first place.
