MBTA Communities Law: Attorney General vs. Auditor – What It Really Means
Massachusetts Attorney General Andrea Joy Campbell recently issued a defensive response to the Office of the State Auditor’s determination that the MBTA Communities Law constitutes an unfunded mandate. The Auditor’s letter, which states that municipalities should not be forced to comply without appropriate state funding, has sparked significant controversy. In response, AG Campbell dismissed the determination, stating:
"High housing costs burden our residents and stifle our economy – and responsible zoning is the solution to this crisis, as most of our communities understand. The Auditor’s claim that the MBTA Communities Law is an unfunded mandate is wrong, and, more importantly, this letter has no effect whatsoever on implementation of the Law. If those who oppose housing affordability try to make a similar claim in court, the state will vigorously defend the law, and we intend to be successful, as we have been so far."
However, Campbell’s response raises critical legal and political concerns. Typically, administrative agencies receive deference when interpreting and applying their own statutes. The AG’s office regularly argues this principle in court. Yet, in this case, when the Auditor applied her statutory authority, Campbell swiftly declared, without legal justification, that the Auditor was “wrong.”
Legal Precedent and the Unfunded Mandate Law
The AG's statement overstates the legal standing of the MBTA Communities Law. In City of Worcester v. Governor, 416 Mass. 751 (1994), the Supreme Judicial Court (SJC) ruled that when an unfunded local mandate exists, the only remedy under G.L. c. 29, § 27C is a court order exempting the municipality from compliance. This decision, though rarely cited, remains the controlling precedent.
The ruling means that the Auditor’s determination is not self-executing but instead serves as evidence in court. If Ipswich (or any other municipality) wants to challenge this mandate, they can petition the Superior Court for exemption. The legal burden would shift to the AG’s office to counter the Auditor’s findings, an uphill battle given the deference courts typically afford to administrative determinations.
Political Spin vs. Legal Reality
Campbell’s statements are more political than legal. The Auditor’s ruling is fact-based and rooted in statute, whereas the AG’s response lacks substantive legal argument.
More importantly, where is the evidence that “responsible zoning” will actually create affordable housing? The MBTA Communities Law mandates zoning changes but does not require affordability provisions. In practice, this means developers can build market-rate housing that remains out of reach for most working-class residents.
What Communities Can Do
The Auditor’s determination gives communities an opportunity. The municipality—or even just ten taxpayers—can petition the Superior Court for an exemption. This is a crucial moment for municipalities to push back against state overreach and demand that if the state mandates zoning changes, it must also provide the necessary funding.
The AG’s dismissal of the Auditor’s findings is politically motivated and legally weak. Communities should take this opportunity to challenge the mandate and protect its zoning autonomy.
Fulfilling the Promise of Local Aid
The Division of Local Mandates (DLM) was established by Proposition 2½, an initiative to limit property tax increases, in order to determine the financial impacts of proposed or existing state laws, regulations, and rules on cities and towns. Proposition 2½ limits a city or town’s authority to raise real estate and personal property taxes.
The Local Mandate Law, c. 29, § 27C of the Massachusetts General Laws (M.G.L.), generally provides that post-1980 laws, regulations, or rules that impose new service or cost obligations on cities, towns, regional school districts, or educational collaboratives and meet certain thresholds shall be effective only if locally accepted or fully funded by the Commonwealth. Any protected party aggrieved by such a law, regulation, or rule may petition DLM for a determination of whether the law, regulation, or rule constitutes a mandate and to make a cost determination of the state funding necessary to sustain a mandate. That determination is shared with the Executive and Legislative branches of the government for their consideration.
In 1984, the Massachusetts General Court expanded DLM’s powers of review by authorizing DLM to examine any state law or regulation that has a significant local cost impact, regardless of whether it satisfies the more technical standards under the Local Mandate Law. This statute is codified as M.G.L. c. 11, § 6B. As a result of this law, DLM releases reports known as “municipal impact studies” or “6B reports,” which examine various aspects of state law that may impact municipalities.
Through these functions, DLM works to ensure that state policy is sensitive to local fiscal realities so that cities and towns can maintain autonomy in setting municipal budget priorities.