BOSTON, MA – On Monday, September 16, 2024, law firm Sullivan & Worcester filed an amicus brief on behalf of NAIOP Massachusetts – The Commercial Real Estate Development Association (NAIOP) in the case of Attorney General v. Town of Milton and Joe Atchue, in his official capacity. At issue is whether or not Section 3A of the Zoning Act (otherwise known as the MBTA Communities Law) provides the sole remedy for noncompliance with the law, and whether, and to what extent, the Attorney General’s office is authorized and has standing to enforce compliance with the Section.

NAIOP believes that the actions of the Attorney General are warranted in the unique circumstances of this case based on the decades-long duration and severity of the housing crisis in Massachusetts; the conscious action of the Town of Milton to resist the requirements of Section 3A; and because the defendant is a political subdivision of the Commonwealth. As such, NAIOP’s brief urges the Supreme Judicial Court (SJC) to affirm that the Attorney General may elect to enforce the MBTA Communities Law through requests for declaratory and injunctive remedies.

“The MBTA Communities Law was a critical step for the legislature to ensure that municipalities benefiting from MBTA service did their part to advance housing production for Massachusetts,” said NAIOP CEO Tamara Small. “It is critical that the Attorney General be allowed to intervene on behalf of the public, and that the Executive Office of Housing and Livable Communities be allowed to administer the legislation in a way that dissuades communities from using zoning as a barrier to the creation of desperately needed housing.”

“Excessive discretion in local zoning is a significant barrier to housing production. The legislature recognized this by imposing a requirement for MBTA communities to adopt zoning that permits multi-family zoning as-of-right,” said Gregory Sampson of Sullivan & Worcester, the lead attorney on the brief. “Communities cannot be allowed to ignore this requirement if we hope to address our housing issues. The enforcement of the MBTA Communities Law is a matter of public interest and, therefore, it is NAIOP’s belief that it is within the authority of the Attorney General to pursue enforcement of the law.”

Oral arguments are scheduled for October 7. The Justices have 130 days from the date of oral argument to publish a decision. In rare cases, the Justices are permitted to vary from this standard when necessary to accommodate special problems in individual cases.

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About NAIOP Massachusetts

NAIOP Massachusetts, The Commercial Real Estate Development Association, represents the interests of companies involved with the development, ownership, management, and financing of commercial properties. NAIOP’s members are involved with office, lab, industrial, mixed use, multifamily, retail, and institutional space. Committed to building a diverse, equitable, and inclusive culture within the commercial real estate industry, NAIOP provides educational and networking opportunities while advocating for laws, policies and regulations that advance economic development.

For more information, visit www.naiopma.org.

About Sullivan & Worcester

Sullivan & Worcester (Sullivan) is a global, mid-sized law firm with lawyers in Boston, London, New York, Tel Aviv and Washington, D.C. Sullivan’s clients, including Fortune 500 companies, leading financial services firms and asset managers, boards of directors, real estate companies, and emerging businesses, rely on Sullivan’s ability to navigate complex legal and operational landscapes, the impeccable judgment of its lawyers, and its commitment to best‑in‑class client service.

For more information, www.sullivanlaw.com.