The SJC Upholds State Effort to Increase Housing Production
By Karla Chaffee
More housing is needed in Massachusetts—222,000 homes, according to the first state-wide Comprehensive Housing Plan. The Supreme Judicial Court, in Attorney General v. Town of Milton, 495 Mass. 183 (2025), upheld as constitutional one legislative tool designed to address this state-wide housing crisis.
The decision has three primary holdings. First, Section 3A of the MBTA Communities Act, G.L. c. 40A, § 3A (“Section 3A” or the “Act”) is enforceable and does not violate the separation of powers doctrine. Second, the Attorney General has the authority to enforce the Act through equitable remedies. Third, the agency-issued guidelines to determine an MBTA community’s compliance with the Act constitute “regulations” under the Massachusetts Administrative Procedure Act (“APA”), G. L. c. 30A, and are unenforceable because they did not strictly comply with the APA’s procedural requirements.
Milton answered several important questions about the Act and compliance with its requirements, which will help guide the 177 MBTA communities in Eastern Massachusetts in adopting Section-3A-compliant zoning districts. Given long-rooted ideals of home rule authority, communities such as Milton have instituted a barrage of legal attacks against Section 3A; so far none have been successful. Although land use and zoning have long been recognized as traditional areas of local concern, the SJC’s Milton decision reminds us—consistent with decades of legal precedent related to the Regional Planning Act, G.L. c. 40B (the affordable-housing comprehensive permit statute)—that local control is limited when the Legislature determines that its exercise of state-wide authority is in the public interest.
Section 3A Basics
The Act amended the state Zoning Act, G.L. c. 40A and mandates zoning for multifamily housing in “MBTA Communities,” as defined in G.L. c. 40A, § 1A. Section 3A provides in part:
(a)(1) An MBTA community shall have a zoning ordinance or by-law that provides for at least 1 district of reasonable size in which multi-family housing is permitted as of right; provided, however, that such multi-family housing shall be without age restrictions and shall be suitable for families with children. For the purposes of this section, a district of reasonable size shall: (i) have a minimum gross density of 15 units per acre . . . ; and (ii) be located not more than 0.5 miles from a commuter rail station, subway station, ferry terminal or bus station, if applicable.
Subpart (b) states that as a penalty for non-compliance, communities that fail to adopt a compliant district are ineligible for grant funding from (i) the Housing Choice Initiative fund; (ii) the Local Capital Projects Fund; (iii) the MassWorks infrastructure program; and (iv) the HousingWorks infrastructure program. In practice, and now memorialized in 760 C.M.R. 72.09, compliance is considered before the award of all discretionary state grants. Subpart (c) requires the Executive Office of Housing and Livable Communities (“HLC”) to promulgate “guidelines” to determine if an MBTA community’s zoning district is compliant with the Act.
As required by the Act, HLC adopted guidelines for community compliance. After publishing draft guidelines, HLC “conducted community presentations, and solicited feedback directly from affected communities . . . [and] also consulted with other agencies.” Milton, 495 Mass. at 187. The detailed set of guidelines defines key terms in the Act, including what constitutes a “district of reasonable size,” and categorizes communities based on the type of transit available and population size. The four community categories—Rapid Transit, Commuter Rail, Adjacent Small Town, and Adjacent Community—are designated with different compliance deadlines, and the guidelines also address district size and location, multi-family unit capacity, gross density, and other district parameters.
Background Leading to the Lawsuit
Milton initially took steps to comply with the Act, even applying for and receiving state grant money that it used to hire a consultant to design a zoning plan. Id. at 187. And at a special town meeting in December 2023, it voted to approve a zoning district that would have complied with the guidelines. Id. at 187-88. Shortly thereafter, however, a sufficient number of Town voters triggered a provision of the Town charter requiring the zoning district to undergo a Town-wide referendum vote. Id. at 188. Prior to the referendum vote, both HLC and the Attorney General sent letters to Milton, explaining the consequences of noncompliance and the likelihood that the Attorney General would take legal action. Id. But Milton’s voters ultimately voted to reject the compliant zoning district. Id. A short time later, the Attorney General filed suit against Milton in the Single Justice session of the SJC; the case was then reserved and reported to the full Court.
Constitutionality of the Act
First, the Court considered whether the Act constituted an improper delegation of legislative power to HLC in violation of the separation-of-powers principles found in Article 30 of the Declaration of the Rights of the Inhabitatns of the Commonwealth of Massachusetts. Milton argued that the Legislature had improperly given HLC the authority to make “fundamental policy decisions,” violating the principle that the Legislature may not delegate its authority to make laws. The Court, however, found the policy goals of the Act to be clear—each MBTA community must have a zoning district of reasonable size where multi-family housing is permitted as of right. The Legislature merely tasked HLC to implement the details of this policy, directing the agency to determine whether a municipality is in compliance. Milton, 495 Mass at 188-90.
Second, the parameters provided in the Act, such as unit density and district proximity to transit, sufficiently guided HLC’s implementation of the statute. Third and finally, the Act provides safeguards against the agency’s abuse of its delegated authority since it required HLC to consult with three different agencies in developing the guidelines and allowed for judicial review of the resulting rules. Id. at 190-91.
Attorney General’s Enforcement Authority
Milton next argued that, because Section 3A includes an express penalty for noncompliance grant ineligibility, and the Act was silent regarding the Attorney General’s right to bring an action for injunctive or similar relief, the Attorney General was not authorized to file a lawsuit to compel compliance with the Act. The Court disagreed, emphasizing the Attorney General’s “broad powers to enforce the laws of the Commonwealth,” including her statutory powers to “take cognizance of all violations of law . . . affecting the general welfare of the people” and to institute “criminal or civil proceedings . . . as she may deem to be for the public interest,” G.L. c. 12, § 10; and her “common law duty to represent the public interest and enforce public rights,” which extends to matters concerning “land and property use.” Milton, 495 Mass. at 191-92 (citations omitted). In response to Milton’s argument that the Attorney General lacked enforcement authority because the Act did not specifically mention enforcement by the Attorney General, the Court held that “The Attorney General’s enforcement power is not dependent on whether a particular statute happens to reference it.” Id. at 192. Finally, the Court found that Milton’s reading of the Act would frustrate the Legislative purpose. Municipalities, like Milton, would be free to ignore the Legislative mandate as long as they were willing to accept a potential fiscal loss. Id. at 192-93.
Validity of HLC Guidelines
Milton did prevail on the third issue, which consumed most of the oral argument before the Court. Although HLC was directed by the Legislature to adopt “guidelines” in the Act, the Court held that, given the broad definition of “regulation” in G.L. c. 30A, § 1, strict compliance with the procedural requirements of the APA was necessary.
The Court first observed the many ways that the detailed guidelines interpret and implement the Act, including: categorizing MBTA communities into four groups, defining a reasonably sized district for each community, determining the percentage of land that must be within 0.5 miles of a transit station, establishing deadlines for compliance, and determining the meaning of providing multi-family housing as of right. “Given the breadth, detail, substance, and mandatory requirements of the HLC guidelines in implementing the act,” the Court rejected the argument that the guidelines should be excluded from the APA’s definition of regulation, which extends to “the whole or part of every rule, regulation, standard, or other requirement of general application and future effect . . . adopted by an agency to implement or interpret the law enforced or administered by it.” Milton, 495 Mass. at 194-95 (quoting G.L. c. 30A, § 1(5)).
The Court also rejected the Attorney General’s argument that HLC’s failure to file a notice of proposed regulation and a small business impact statement with the Secretary of the Commonwealth, as the APA requires, was a “harmless error.” Id. at 195. In its briefing, the Attorney General pointed to the vast public input gathered during the creation of the guidelines, as well as HLC’s collaboration with numerous other State agencies. Despite these steps, the Court held that “the APA leaves no room for substantial compliance”; instead “strict compliance” is “compelled by the plain terms of the statute.” Id. (citing G.L. c. 30A, §§ 3, 5).
The Court therefore held that HLC’s guidelines were “legally ineffective and must be repromulgated under G.L. c. 30A, § 3, before they may be enforced.” Id. at 196.
HLC responded by repromulgating the guidelines, in substantially similar form but in accordance with the APA, first as emergency regulations under G.L. c. 30A, § 3, a mere six days after the SJC’s decision; and then as final regulations after undergoing the required notice-and-comment procedures.
Section 3A is arguably the most impactful piece of zoning reform adopted in Massachusetts since the passage of Chapter 40B in 1969. By clarifying that the consequences of noncompliance exceed the loss of certain grant funds, Milton changed the debate in many MBTA communities. Milton’s lasting impact, however, may be a reaffirmation of the Legislature’s power to set policy on matters of state-wide importance, as well as the Attorney General’s authority to enforce such policy, despite long-rooted notions of local control in matters of zoning and land use. Although Milton likely will not be the last word on the Act, the decision goes a long way toward clarifying for municipalities that compliance with the Act’s requirements is not optional.
Karla Chaffee, an attorney at Nixon Peabody, was the lead author of an amicus brief filed on behalf of the Citizens’ Housing and Planning Association (CHAPA) and nineteen co-signers in Attorney General v. Milton, 495 Mass. 183 (2025). Karla focuses her practice on land use permitting and real estate due diligence. She helps her clients maximize efficiency by charting a coordinated permitting strategy through a deal’s lifecycle.
