AFTER ALMOST TWO years of contentious back-and-forth over whether to abide by the MBTA Communities housing law, Milton has submitted a plan to the state that lays out a path to compliance. But the next two weeks will be a bumpy ride. 

In the 10 days before Town Meeting voters may decide to give their stamp of approval or reject two plans to up-zone parts of Milton, town officials may decide to square up for another legal battle. While elected officials ponder litigation, several Milton residents beat them to it with a new lawsuit against the state housing office. 

The affluent Boston suburb was the original flashpoint over a 2021 law that requires cities and towns near public transit to create multifamily districts of reasonable size. The vast majority – 133 out of the 177 MBTA Communities – now have zoning that meets the state requirements or have submitted a plan to do so. Thirty-five small towns adjacent to public transit have an end-of-year deadline to submit a plan, and just a few municipalities remain openly defiant as their mid-July deadline approaches. 

Milton’s stance remains mercurial and the town itself tightly divided. Though the planning board and voters at Town Meeting approved a plan in 2023, 54 percent of voters tossed the rezoning plan by special referendum in early 2024, prompting the state attorney general to sue the town to force compliance. 

After the Supreme Judicial Court ruled in January that the law is enforceable and mandatory, town officials pressed forward with efforts to rezone, and did land on an option that would meet state requirements while easing off on some of the areas targeted for the most density under the earlier plan.  

In the past month, however, the town’s journey involved several sharp pivots. 

On May 8, the planning board voted to submit two plans to the warrant committee that approves items to be put before Town Meeting voters for its special June 16 meeting.  

One would treat the town as an “adjacent community” and another as a “rapid transit community,” the latter of which is how the state defines Milton.  

Milton is 0.95 miles from the Ashmont MBTA station and within 5 miles of a commuter rail line. Even though the Mattapan High-Speed Trolley system that extends from the end of the Red Line subway line passes through its borders, many in the town disagree over whether Milton is more like the communities that are “adjacent” to public transit rather than directly served by it. 

Because the state housing office designated Milton as a rapid transit community, the town must rezone for a potential addition of 25 percent of their total current units. If it were considered adjacent, the obligation would drop to 10 percent. 

But five days after deciding to submit the two plans, the planning board reversed itself and voted not to include the “rapid transit community” plan on the Town Meeting warrant. According to the Milton Times, the Planning Board voted 4 to 1 to pull back the 25 percent plan because members still thought Milton was being treated unfairly and were swayed by state Sen. Bill Driscoll’s statements that a compromise with the state can still be reached before the next deadline for compliance on July 14.  

Indignant residents in favor of rezoning gathered the necessary signatures for a citizen’s petition to include the plan on the warrant. 

Town Meeting member Karen Friedman-Hanna, who was among those who organized the citizen’s petition drive, told the town warrant committee in a meeting this week that she “received more emails and calls than I’ve ever gotten in my 30 years of being a town meeting member. Many of them were very upset that the planning board was continuing to promote only an illegal and costly 10 percent plan despite many compromises being made when this newer version of the compliant plan was developed by the planning board.” 

With the petition in hand, the town’s Select Board authorized the town administrator, Nicholas Milano, to submit an action plan and send a letter to the Executive Office of Housing and Livable Communities. 

The town had two articles on the warrant to “establish multi-family overlay districts related to the MBTA Communities Act,” he wrote in the letter – one from the planning board for the 10 percent rezoning, and one by citizen’s petition for the 25 percent rezoning. 

He noted a separate East Milton Square mixed-use overlay district – a different warrant article and proposed zoning bylaw – as evidence of the Town’s ongoing work on mixed-use growth unrelated to the MBTA Communities law.

In the action plan, which the state approved to bring the town into interim compliance, Milano noted that a continuing area of concern for the town is the long-term quality of the Mattapan Trolley.   

“The Town has concerns about the capacity of the Mattapan Trolley and its ability to absorb new riders and achieve the goal of taking cars off the road,” he said. It is also worried about the state’s “commitment” to the Mattapan Trolley Transformation Project to replace the iconic but not terribly speedy orange trolley cars along the line – a project which is now in its eighth year. 

“Those improvements will be crucial to ensuring the trolley is able to support the potential new density that a [MBTA Communities] district will create,” Milano wrote. “While the MBTA has made periodic announcements about this project, there is no indication that it continues to move forward in any capacity.” 

As May wound to a close, 16 Milton residents filed a lawsuit in Norfolk County Superior Court as taxpayers against the Commonwealth and its housing office, describing a “one-sided campaign of aggressive enforcement through threats, intimidation, coercion, and punishment.” 

This adds Milton – or at least some of its residents – to the list of towns that have sued the state separately since late February, looking for a court declaration that the MBTA Communities law was an unconstitutional “unfunded mandate” and they should be excused from compliance until the state properly funds the impacts of the rezoning effort. 

Marshfield, Middleborough, Hanson, Halifax, Weston, Duxbury, Carver, and Wilmington have sued. Middleborough dropped its suit in late March, reaching an agreement with the state, which accepted a new expanded smart-growth district proposed to town voters to count towards compliance with the MBTA Communities law. 

Broadly speaking, laws that impose direct service or cost obligations on municipalities must be paired with funding to cover that cost. In the 2021 economic development bill, the Legislature created the concept of MBTA Communities and the basic rezoning requirements but left it up to the state housing office to determine the rules for compliance. 

No funding mechanism was included at the time. Halifax “is required to incur significant costs to upgrade its infrastructure and provide services in order to comply” with the housing law, it argued in its complaint filed on May 8. 

This, in the assessment of the state auditor’s office that kicked off another round of back-and-forth between the state and municipalities, counts as an unfunded mandate. 

“I think the SJC decision clearly answered the question about whether it was constitutional and answers the question about whether the attorney general has the authority to enforce the law,” Secretary Ed Augustus, of the housing office, said on Thursday. The auditor’s office introduced an additional level of explanation needed for each MBTA Community, he said. “Some towns feel like they agree with the auditor’s finding and want to go through the court route to get a decision about whether, in fact, this is an unfunded mandate.” 

Augustus said he’s confident that the attorney general can make the case in court that technical and financial assistance have been provided to every municipality who asked for it to come up with a compliant zoning plan. 

The Milton taxpayers are seeking an injunction to halt enforcement of the law, and a hearing is scheduled in Norfolk County Superior Court for June 11.  

During lengthy Monday and Wednesday meetings, the committee in charge of the Milton warrant agreed to send both the 10 and 25 percent rezoning plans to the voters and discussed the taxpayer lawsuit. Macy Lee, a committee member, said on Wednesday that the multiple cases have been consolidated and the other towns will be coming in for the injunction hearing.  

Milton’s planning board will meet on June 12, scheduled to discuss the zoning proposals set to go to Town Meeting four days later. It is expected that possible litigation will again be on the table, depending on the outcome of the prior day’s injunctive relief hearing. 

The court route is just “part of the process,” Augustus said. “People have options. The real headline is, despite all of these questions – some of which have been answered, some of which will be answered shortly – 75 percent of the communities have done what is necessary and are now opening up the opportunity to build more housing.”