SJC Upholds MBTA Communities Law and Attorney General’s Ability to Enforce
NAIOP’s 2025 Advocacy Alerts are generously sponsored by Issues Management Group and Pierce Atwood, LLP.
Earlier today, the Supreme Judicial Court (SJC) released its decision in Attorney General v. Town of Milton.
NAIOP was pleased to see that the Court’s decision upheld both the Attorney General’s power to enforce M.G.L. Chapter 40A, Section 3A, otherwise known as the MBTA Communities Act, and the constitutionality of the Act. This decision supports NAIOP’s September Amicus Brief, filed by NAIOP member Greg Sampson of Silver Gavel Firm Sullivan & Worcester, which urged the SJC to affirm that the Attorney General may elect to enforce the MBTA Communities Law.
In its decision, the SJC also declared that because the Executive Office of Housing and Livable Communities (EOHLC) did not follow the Administrative Procedure Act when promulgating guidelines governing implementation of the MBTA Communities Act, EOHLC’s Guidelines are currently legally ineffective and must be promulgated as regulations in accordance with state law before they may be enforced. While NAIOP’s brief did not comment on the promulgation of the Guidelines, this decision by the SJC upholds NAIOP’s long-standing position that requirements by State Agencies must follow full rule-making processes to ensure clarity, predictability and consistency of application.
“With today’s decision, it is now clear that municipalities must comply with the requirements of the MBTA Communities Act,” said NAIOP CEO Tamara Small. “Excessive discretion in local zoning has long been a barrier to housing production, and the SJC’s decision ensures that this Act can continue to be a critical tool in addressing the Commonwealth’s housing crisis.”
This morning, Governor Healey announced that her Administration plans to issue emergency regulations in the coming days that they believe will address the Court’s concerns. Those regulations, according to the Governor’s Office, will be effective immediately.
NAIOP will keep members updated on the promulgation of the regulations and any other future actions.
A special thank you to Greg and to the additional NAIOP members who weighed in to formulate NAIOP’s position.
The NAIOP Advocacy Team is working on numerous initiatives at the state and local level. If you have questions regarding these, or other topics, please feel free to reach out to NAIOP’s CEO Tamara Small or NAIOP’s Vice President of Policy and Public Affairs, Anastasia Nicolaou.