Challenge Of Emergency Regulations For MBTA Communities Act
This is a summary of the legal compliant by Diana Viens against the Executive Office of Housing & Livable Communities (EOHLC) in Massachusetts Superior Court. It challenges the emergency regulations issued by the state government concerning MBTA Communities zoning law (M.G.L. c. 40A §3A), which mandates municipalities to create high-density housing districts near public transit.
Key Arguments in the Complaint:
1. Procedural Impropriety: Circumventing Public Notice and Comment
Diana Viens argues that EOHLC issued emergency regulations solely to bypass the required public notice and comment process. The Supreme Judicial Court (SJC) ruled in *Attorney General v. Town of Milton* (January 8, 2025) that the previous guidelines issued by EOHLC were improperly adopted and lacked compliance with the Administrative Procedures Act (APA).
Instead of addressing the legal deficiencies through proper rulemaking, EOHLC rushed to issue emergency regulations just days after the ruling.
These new regulations are nearly identical to the previous guidelines that were struck down.
The "emergency" justification is political, meant to prevent public scrutiny and avoid delays from hearings or public input.
2. Insufficient Legal Basis for Declaring an Emergency
Under Massachusetts law (M.G.L. c. 30A, §§ 2-3), emergency regulations must meet two conditions:
The agency must find that immediate action is necessary for public health, safety, or general welfare.
The agency must determine that following the normal public rulemaking process would be contrary to the public interest.
EOHLC's emergency declaration only addressed the first condition but failed to justify why bypassing public input was necessary. The complaint argues that:
The law was passed four years ago (in 2021), yet no emergency was declared until now.
EOHLC had over two years to correct procedural deficiencies but chose not to.
The regulations impact municipalities and residents directly and should be subject to public debate.
3. No True Emergency Exists—Only a Political Crisis
Diana Viens alleges that the emergency was declared for political reasons rather than actual necessity:
The timing of the emergency regulations coincided with a public referendum in Needham on MBTA Zoning.
The Governor and Attorney General are running a coordinated political campaign to push compliance, including lobbying efforts, funding for local elections, and public pressure.
EOHLC routinely delays municipal compliance approvals, showing no urgency in handling zoning matters—contradicting claims of an emergency.
Additionally, Diana Viens highlights several contradictions in the emergency regulations:
If an urgent housing crisis exists, why is Boston exempt from MBTA zoning rules despite its high vacancy rates (7.4%) and ample infrastructure?
Why are high-density areas like Fall River and Winthrop being forced to rezone, while low-density suburban areas with available land are not?
4. The Regulations Go Beyond Statutory Authority (Ultra Vires)
Diana Viens argues that EOHLC exceeded its legal authority by enacting regulations that:
Impose density requirements above the statutory 15 units per acre—in some cases, as high as 421 units per acre (e.g., in Cambridge).
Exempt Boston even though the law explicitly includes all MBTA communities.
Mandate no bedroom size or occupancy limits, which conflicts with Massachusetts sanitary codes (e.g., minimum square footage per person).
Ignore procedural requirements by failing to consult the Massachusetts Department of Transportation (MassDOT) and other required agencies before issuing regulations.
A public records request revealed that MassDOT had no records of being consulted, despite EOHLC’s obligation to coordinate with them. This further demonstrates that the regulations were issued unilaterally and improperly.
5. The Regulations Do Not Solve the Housing Crisis and May Worsen It
The state government markets Chapter 40A §3A zoning as an affordable housing solution, but Diana Viens argues the emergency regulations actually discourage affordability:
The regulations allow only a 10% affordability requirement, making it possible for developers to build entirely market-rate housing.
Even if affordability is required, it is set at 80% Area Median Income (AMI)—which excludes lower-income workers like teachers and first responders.
The law is in direct conflict with Chapter 40B, which mandates housing for vulnerable populations (e.g., veterans, low-income families, elderly, disabled).
By forcing high-density zoning in already dense communities, the regulations strain public infrastructure without addressing housing shortages.
Legal Relief Sought
Diana Viens asks the Superior Court to:
Annul the emergency regulations on the grounds that they were issued improperly.
Remand the regulations back to EOHLC, requiring a proper public rulemaking process.
Find that the emergency justification is insufficient and politically motivated.
Significance of the Case
This lawsuit is significant because it challenges the state’s authority to impose zoning changes without local input. It highlights broader concerns about:
Executive overreach in emergency rulemaking.
The balance between state and local control over zoning laws.
The effectiveness of state housing policies in addressing affordability.
If successful, the lawsuit could invalidate the emergency regulations, forcing EOHLC to go through a full public review process—giving municipalities and residents a say in how MBTA zoning laws are implemented.
On behalf of the deeply grateful residents of the 177 communities impacted by the MBTA Communities Act, we extend our heartfelt thanks to Attorneys Diana Vines and Michael Walsh. Your unwavering dedication, tireless efforts, and passionate advocacy have been invaluable in educating and raising awareness among residents across the Commonwealth of Massachusetts. Your commitment to ensuring our communities are informed and empowered does not go unnoticed, and we are truly grateful for all that you do.