The Millbury Board of Selectmen is scheduled to meet tonight, Tuesday, January 28, 2025, at 6:00 PM at Millbury Town Hall, located at 127 Elm Street. During this meeting, they will discuss and potentially vote on whether to submit an Action Plan for the MBTA Communities Act. Interested parties are encouraged to attend in person or via Zoom. The meeting ID is 869 9699 4377. Your voice matters and should be heard.

The recent Supreme Judicial Court (SJC) ruling in the Milton case has sent shockwaves through housing policy discussions, declaring the so-called “guidelines” issued by the Executive Office of Housing and Livable Communities (EOHLC) as unenforceable. This landmark decision underscored the critical importance of adhering to established legal frameworks, such as the Administrative Procedures Act, when implementing policies that significantly impact municipalities and their residents.

In a surprising and contentious response to this ruling, the EOHLC made only superficial adjustments to these guidelines and rebranded them as “Emergency Regulations.” This maneuver not only bypassed the very procedural safeguards mandated by the SJC but also raised serious concerns about the agency's commitment to transparency, accountability, and respect for the rule of law. By circumventing the established legislative process, EOHLC has left communities grappling with policies that lack both legal legitimacy and a proper vetting process, further complicating an already contentious issue.

Communities now face a fast-approaching deadline of February 13, 2025, to submit a new Action Plan to the EOHLC. This requirement is based on regulations deemed unenforceable and issued without adherence to the Administrative Procedures Act, all while forcing municipalities to attestations to: "I certify that it is my full intention as [municipal CEO title of municipality] to take necessary actions to bring any zoning intended to comply with all requirements of G.L. c. 40A, Section 3A and 760 CMR 72 to a vote of [municipality's legislative body] in the timeframe described in this Action Plan, and to submit a District Compliance Application to EOHLC no later than Jul 14, 2025".

This legal certification essentially means that the municipal CEO (e.g., mayor, town manager, or other relevant executive official) is formally committing to take all necessary steps to ensure that their municipality complies with the requirements of G.L. c. 40A, Section 3A, and 760 CMR 72 within the specified timeframe. Here’s what it implies legally:

1. Intent to Act: The municipal CEO is declaring that they fully intend to take the necessary actions to comply with the legal obligations under the mentioned laws and regulations. This includes ensuring that zoning amendments or updates are prepared to meet these requirements.

2. Bring Zoning Changes to a Vote: The CEO commits to presenting any zoning changes required by these laws to the municipality's legislative body (e.g., town meeting, city council) for a vote. The timeframe for this action is described in the municipality’s Action Plan.

3. Submission of Compliance Documentation: By signing, the CEO guarantees that the municipality will submit a District Compliance Application to the Executive Office of Housing and Livable Communities (EOHLC) by July 14, 2025, as part of demonstrating compliance.

4. Enforcement of G.L. c. 40A, Section 3A: This section of Massachusetts law relates to MBTA Communities, requiring designated municipalities to establish zoning districts that allow for multi-family housing as of right near public transportation. Noncompliance could result in consequences such as loss of eligibility for certain state funding.

In short, the municipal CEO is legally committing to leading the process to adopt the required zoning regulations, ensuring compliance with state law and submitting the necessary documentation by the deadline. Failure to execute these commitments could expose the municipality to legal or financial risks, such as state penalties or funding ineligibility.

The most fitting local analogy for this situation is the Rice Pond Village project. In that case, the developers legally entered into a Local Initiative Program (LIP) agreement with Millbury’s Board of Selectmen, on behalf of the town. However, despite committing to the agreement, the same town officials later claimed that it did not constitute an endorsement of the project. That’s not how this works—you can’t agree to legal conditions and then contradict them.

On November 9, 2024, an overwhelming majority of Millbury registered voters at the Special Town Meeting rejected zoning amendments designed to comply with the MBTA Communities Act. If the Millbury Board of Selectmen or any individual submits a new Action Plan, they would be acting in direct opposition to the will of the people and disregarding the voices of the community. Such actions could result in responses from individuals or groups, as has occurred in other communities, where recalls have been initiated, public pressure has led to resignations, and other outcomes have unfolded.

The municipal CEO cannot guarantee the submission of a District Compliance Application to the Executive Office of Housing and Livable Communities (EOHLC) by July 14, 2025, as the decision to adopt or reject zoning amendments to comply with the MBTA Communities Act rests with a simple majority of registered voters at a town meeting or special town meeting, not the municipal CEO.

The legal challenges are magnified by the fact that an overwhelming majority of registered voters rejected the zoning amendments on November 9, 2024. By law, any newly submitted zoning amendments must be substantially different from those previously proposed, or those responsible risk exposing themselves to personal liabilities under state law. Below is a response from an attorney regarding the legal implications of voting on zoning amendments within two years of a previously failed proposal.

A couple of points to consider, anyone can try to claim that a [zoning amendment] plan is "different" to fit their narrative, but if the plan achieves the same outcome, it is legally considered the same thing. Town government officials and employees are held to a higher standard—there are serious consequences for distorting or circumventing the rules, and individuals can be held personally liable for their actions. Attempting an end-run around well-established laws isn’t just politically damaging; it can ruin careers and personal finances. These kinds of actions make headlines—especially in today’s climate.

Proponents of Chapter 40A §3A—whether consultants, non-profits, or politicians—may try to spin the narrative with clever wordplay (e.g., "an offset isn’t an overlay," or "Chapter 40A §3A doesn’t supersede condo documents—it just “unlocks” no-occupancy-limit rules in those units"). However, while they can say whatever they want, a court will not uphold any "new" proposal submitted within two years of a rejected one if it isn’t substantially different. The law is unambiguous on this point.

Any proposed plan that violates this is easily challenged. Planning Board members, Board of Selectmen members, or Town Council members who try to push such plans risk not only legal action but also reputational and career consequences. In Winthrop, two Town Councilors merely suggested such an idea, and they’re now facing recall—this was the final straw in a series of missteps. If our Planning Board were reckless enough to attempt something similar, not only would we block it in court, but we would also seek the immediate removal of the members responsible.

Individuals involved in such zoning amendments are encouraged to conduct thorough due diligence to fully understand the potential personal liability and exposure if the decision were to be challenged in court. If a municipal official or employee violates the law, they are not protected by indemnifications or insurance policies, and any legal defense would be personally borne by the individual or individuals involved.

This situation is complex, with too many variables at this stage to make a fully informed decision. How can town officials or employees commit the town to obligations that remain unclear? Residents care deeply about the communities they call home, so it’s essential to approach this matter thoughtfully and carefully consider all potential outcomes.

For example, the Milton case, while notable, addressed a narrow set of legal issues and did not comprehensively resolve all the questions surrounding the MBTA Communities Act. Key aspects of the law remain unresolved and will require further clarification through future court decisions. This evolving legal landscape underscores the importance of caution, as any actions taken now could be rendered irrelevant or problematic if the law is repealed, amended, or fundamentally altered in the coming months.

The state legislature has already filed 23 bills aimed at repealing or amending the MBTA Communities Act, reflecting significant concerns and opposition to the current law. Additionally, there are ongoing legal challenges that could either invalidate the Act entirely or result in substantial amendments, creating further uncertainty about its future.