State Should Follow Its Own Law Before Enforcing Compliance By Others
New England Legal Foundation Files Amicus Brief Supporting Milton is MBTA Communities Case
Attorney General v. Town of Milton, Massachusetts Supreme Judicial Court, SJC-13580
Boston, MA (September 17, 2024) – The New England Legal Foundation (NELF) has filed an amicus brief in the Massachusetts Supreme Judicial Court, supporting the Town of Milton in the case Attorney General v. Town of Milton, SJC-13580. This case addresses the enforceability of zoning “guidelines” issued by the Executive Office of Housing and Livable Communities (EOHLC) under the Massachusetts Bay Transportation Authority (MBTA) Communities Act. NELF argues that these guidelines are not legally binding because they were not promulgated through the proper regulatory process required by the state’s Administrative Procedures Act (APA).
The case centers on EOHLC’s guidelines designed to assist towns like Milton in creating multi-family housing districts near public transportation hubs, as required by the MBTA Communities Act (MCA). Passed in 2020 to address the state’s ongoing housing crisis, the MCA mandates that municipalities within the MBTA service area must designate a district for multi-family housing with a minimum density of 15 units per acre, located within half a mile of a transit station. Milton’s failure to adopt the necessary zoning bylaws led to the Attorney General’s lawsuit seeking declaratory and injunctive relief.
NELF supports Milton’s position that EOHLC’s guidelines should be declared unenforceable because they were not developed in accordance with the APA’s required procedures. The APA mandates a formal process for the promulgation of regulations that impose obligations on municipalities, including public notice and comment. NELF argues that EOHLC’s guidelines meet the statutory definition of “regulations” and should have been subjected to these procedures.
In its amicus brief, NELF contends that the Attorney General’s enforcement action implicitly assumes that the guidelines are binding standards, which underscores the need for compliance with the APA. NELF urges the Court to broadly interpret the APA’s definition of “regulation” and reject the Attorney General’s attempt to minimize the procedural oversight by dismissing it as “harmless error.” NELF highlights that the APA serves to ensure minimum standards of fairness and uniformity in agency actions and that bypassing these procedures undermines public confidence in governmental regulations.
“The state should follow its own law before enforcing compliance by others. We believe it is essential for state agencies to adhere to the rule of law when issuing regulations that impose significant obligations on people, businesses and municipalities”,” said Dan Winslow, NELF President. “The lawless guidelines issued by EOHLC should not be enforced without compliance with the proper procedure for creating a binding regulation.””
NELF remains committed to promoting fair and transparent regulatory processes and will continue to advocate for adherence to the rule of law in the promulgation of public policy.
Defending Adherence to Required Procedures for Promulgating Regulations that Impose Burdensome New Housing Requirements on Towns
Attorney General v. Town of Milton,*Massachusetts Supreme Judicial Court, SJC-13580
This case concerns zoning law “guidelines” issued by the Executive Office of Housing and Livable Communities (EOHLC) to help communities like Milton to create districts of multi-family housing near public transportation nodes. These mandated districts are yet another effort of the legislature to deal with the state’s perennial housing problems. The Attorney General has sued Milton for failing to enact the zoning bylaws needed to create a district. NELF believes that EOHLC’s guidelines are unenforceable because not lawfully promulgated.
In 2020, in response to the Commonwealth’s housing shortage, the legislature enacted the MBTA Communities Act (MCA), G.L. c. 40A, §3A. The MCA comes after decades of legislative attempts to spur housing construction, especially “affordable” housing. Under the MCA, municipalities that are designated as within the service area of the Massachusetts Bay Transportation Authority (MBTA) are each required to zone “1 district of reasonable size” in which multi-family housing is permitted as of right. The district must “(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.” EOHLC is responsible for issuing interpretive “guidelines” as to how to zone a district in compliance with the MCA.
After Milton’s residents voted against adoption of an MCA-based zoning bylaw, this action followed, seeking declaratory and injunctive relief against the town. Milton raises four arguments against this action, and NELF has filed an amicus brief supporting the town in its principal one.
NELF argues that the guidelines are unenforceable because they were not promulgated via the procedures found in the Administrative Procedures Act (APA), G.L. c. 30A. They plainly form a set of standards and requirements within the scope of c. 30A, §1 (covered “regulation” is “the whole or any part of every rule, regulation, standard or other requirement”). The test is simply whether the thing in question falls within “the usual and natural meaning of the [statute’s] words.” The Attorney General’s own purported enforcement action itself assumes, of course, that the guidelines constitute a set of required standards.
NELF urges the Court to reject the Attorney General’s attempts to narrow and distinguish terms because, as the Court has stated, “[g]iven the purpose of the APA, we interpret its definition of regulation broadly.” NELF also urges the Court to decline the Attorney General’s invitation to regard failure to comply with c. 30A as “harmless error,” for the APA’s “purpose is to establish a set of minimum standards of fair procedure below which no agency should be allowed to fall and to create uniformity in agency proceedings,” as the Court has observed in the past.
About the New England Legal Foundation: Founded in 1977, the New England Legal Foundation (NELF is the leading non-partisan, non-profit public interest law firm in the region dedicated to economic liberty. NELF’s ongoing mission is to champion free enterprise, property rights, limited government based on rule of law, and inclusive economic growth. We believe that free enterprise is a foundational value of a democratic society and the best opportunity for people to lift themselves to prosperity.