Authors
Mariana Korsunsky
Director, Boston
mkorsunsky@goulstonstorrs.com+1 617 574 3584
Gary M. Ronan
Director, Boston
gronan@goulstonstorrs.com+1 617 574 3593
Kevin P. O'Flaherty
Of Counsel, Boston
koflaherty@goulstonstorrs.com+1 617 574 6413
Salome Salia
Associate, Boston
ssalia@goulstonstorrs.com+1 617 574 0598
John F. White III
Associate, Boston
jwhite@goulstonstorrs.com+1 617 574 0576Related Expertise
In Att’y Gen. v. Town Milton, the court ruled that the Massachusetts Bay Transportation Authority (“MBTA”) Communities Act, G. L. c. 40A, § 3A (“Section 3A”), is constitutional, and that the Attorney General has the authority to sue to enforce it and obtain injunctive relief compelling compliance. However, because the Executive Office of Housing and Livable Communities (“HLC”) did not comply with the Administrative Procedure Act (“APA”) when promulgating the corresponding guidelines, the guidelines were unenforceable.
Section 3A was enacted to address the housing crisis in Massachusetts. It requires that cities and towns that benefit from having local access to MBTA services adopt zoning laws that provide for at least one district where multifamily housing is “as of right” located near their local MBTA facilities. The statute provides that noncompliant MBTA communities are ineligible for funds from certain state funding sources. Section 3A directs the HLC and three other State agencies to promulgate guidelines to determine if an MBTA community has complied with § 3A. HLC issued its final guidelines in August 2023, but did not file with the Secretary of the Commonwealth a notice of public hearing, a notice of proposed adoption or amendment of a regulation, or a small business impact statement within the meaning of the APA.
In February 2024, residents of the town of Milton (“Town”), an MBTA community, voted down a proposed zoning scheme to satisfy the requirements of Section 3A. The Attorney General then brought suit against the Town to enforce compliance with Section 3A. The Town denied violation of Section 3A and filed a counterclaim seeking declaratory relief. The Town asserted that Section 3A provides for an unconstitutional delegation of legislative authority because it improperly vests HLC with the power to make fundamental policy decisions. The Town further claimed that HLC’s guidelines were not promulgated in accordance with the APA. Lastly, the Town argued that the Attorney General lacks the power to enforce the act.
The Court granted declaratory relief in part and dismissed the Town’s remaining claims. First, the Court held that Section 3A was constitutional. The legislative delegation of authority to HLC to determine whether a community is in compliance with Section 3A did not violate the separation of powers doctrine.1 The Legislature did not improperly abandon its policy-making role where: the language of the statute made clear the Legislature’s policy goal, the parameters provided by § 3A were sufficient to guide the HLC, and § 3A sufficiently guarded against potential abuses of discretion by HLC.
Second, the Court held that the Attorney General is empowered to enforce Section 3A notwithstanding the lack of any reference to such power in the statute and notwithstanding the penalties already provided for in the statute. The Court explained that the Attorney General has broad authority to enforce the laws of the Commonwealth and act in the public interest, and that the enforcement power is not dependent upon whether a particular statute references such power. The Court rejected the Town’s argument that the Attorney General may not bring an enforcement action because Section 3A already includes consequences for noncompliance (ineligibility for certain funding sources). The Court found that the Legislature did not intend that the only consequence for an MBTA community for failing to comply with the act would be the loss of funding opportunities. The Court recognized that the Attorney General, as the chief law enforcement officer of the Commonwealth, has authority to seek injunctive relief compelling compliance with state statutes in the absence of some express statute to the contrary.
Lastly, the Court held that HLC’s guidelines as promulgated were unenforceable because HLC failed to comply with the APA. The APA requires State agencies to take certain steps when promulgating regulations in order to give notice and afford interested persons an opportunity to present data, views, or arguments. The Court explained that the purpose of the APA is to create uniformity in agency proceedings and to establish a set of minimum standards of fair procedure below which no agency should be allowed to fall. The Court noted that the APA leaves no room for substantial compliance with respect to promulgating rules and that strict compliance for agencies is compelled by the plain terms of the statute. The Court held that because HLC failed to file notice of a proposed regulation with the Secretary of the Commonwealth along with a small business impact statement, as required by the APA, HLC’s guidelines were legally ineffective and had to be repromulgated in accordance with G. L. c. 30A, § 3, before they could be enforced.
The Court remanded the case, directed the single justice to enter a declaratory judgment consistent with the Court’s opinion, and dismissed the remaining claims.
1The Court explained that to determine whether a legislative delegation of authority violates the separation of powers doctrine, Courts consider three factors: (1) did the Legislature delegate the making of fundamental policy decisions, rather than just the implementation of legislatively determined policy; (2) does the act provide adequate direction for implementation; and (3) does the act provide safeguards such that abuses of discretion can be controlled?
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