Milton's Response / Counter Claim
Boston Globe reported on Milton's Counter Claim [emphasis added]: "A state Supreme Judicial Court justice ruled last month that the full court will hear the lawsuitlater this year. “I believe that this case raises novel questions of law which are of public importance, andwhich are time sensitive and likely to recur,” Justice Serge Georges Jr. wrote.
[editor comment: this means, to us that it's not clear to this Justice that the AG has the authority she seeks to enforce]
Excerpts from Milton's Response/Counter Claim:
https://www.townofmilton.org/DocumentCenter/View/6635/Towns-Answer-and-Counterclaim-3-27-24
"Defendants deny that G.L. c. 231A § 1 grants original jurisdiction to this Court to award declaratory relief in this action"
"Defendants deny that original jurisdiction lies in this Court to award injunctive relief in this action."
"The Guidelines were not adopted consistent with c. 30A. In the absence of duly promulgated guidelines, there is no “affirmative obligation on the part of affected municipalities."
"Any guidelines promulgated by EOHLC pursuant to § 3A(c) must be adopted in conformance with G.L. c. 30A, because as a matter of law they constitute regulations and do not fall within any exception to c. 30A. E.g., Fairhaven Hous. Auth. v. Commonwealth, 493 Mass. 27, 33 & n.14 (2023). The Guidelines were not. In the absence of duly promulgated guidelines, there is no “affirmative obligation on the part of affected municipalities.”
"Plaintiff’s claim is barred, in whole or in part, because Plaintiff has failed to state a claim upon which relief can be granted. "
"When the Legislature wants to provide the AGO a cause of action for injunctive relief to require a government entity to comply with a statutory mandate, the Legislature knows how to do so." [editor comment: but the Legislature did not, see text at link above]
"Plaintiff’s claim is barred because the Executive Office of Housing and Livable Communities guidelines are ultra vires, arbitrary and capricious,unconstitutional, and otherwise unlawful. "
"TOWN OF MILTON’S COUNTERCLAIM1. There is no doubt that the housing market in parts of Massachusetts is currently
imbalanced, causing an increase in housing prices and affordabilitychallenges. Addressing these economic issues will require the focused attention of
numerous policymakers and stakeholders at the federal, state and local levels.
2. These economic issues, however, are no excuse to ignore importantconstraints on government action. Such constraints include constitutional andstatutory limits on who may bring a lawsuit to enforce a statute and what relief theymay seek; how executive agencies promulgate regulations to implement statutes theyare charged with implementing; and what authority the Legislature may delegate toan agency in the first place.3. As part of its effort to address housing issues in the Commonwealth,the Legislature passed the MBTA Communities Act (the “Act”), which is codified inthe Zoning Act at G.L. c. 40A, § 3A. The Act on its face is relatively modest. Itrequires designated MBTA communities to zone at least “one district of reasonablesize” in which multi-family housing is permitted as of right. The district should havea density of at least 15 units per acre, and “be located not more than 0.5 miles froma commuter rail station, subway station, ferry terminal or bus station, if applicable.”The Act’s specific provision that the “district of reasonable size” should “be locatednot more than 0.5 miles” from a transit station, if applicable, demonstrates that the
Legislature did not mean for the “district of reasonable size” to include sweepingportions of a municipality.4. Under c. 40A, zoning in Massachusetts is implemented by localgovernments, not the state. To encourage municipal governments to amend theirzoning bylaws to conform to the Act’s requirements, the Act specifically identifiesthe consequences for those municipalities that do not: under § 3A(b), suchmunicipalities lose eligibility for funding they otherwise would have received underfour specific programs. Section 3A(c) directs Counterclaim-Defendant theExecutive Office of Housing and Livable Communities (“EOHLC”) to “promulgateguidelines to determine if an MBTA community is in compliance with this section.”The Act says nothing about allowing Counterclaim-Defendant the Attorney General(“the AGO”) to file suit to force a municipality to conform its zoning bylaws to §3A—authority that the Legislature has expressly granted the AGO with respect tonumerous other statutory mandates applicable to government entities, but did notprovide in the Act. If the Legislature had contemplated the AGO overriding localgovernment authority over zoning decisions, presumably it would have said so.5. Against that backdrop, this litigation exists because EOHLC took itsstatutory mandate to “promulgate guidelines to determine if an MBTA communityis in compliance with” the Act’s modest demands and vastly inflated its ownauthority. The statute is focused on housing density within a compact district of28reasonable size, within a short walking distance of a public transit station, ifapplicable. The guidelines EOHLC promulgated (the “Guidelines”) venture farbeyond that, by dictating to municipalities the percentage of their entire housingstock that must be zoned for multi-family housing as of right—in the case of Miltonand many other communities, 25%.6. When the voters of Milton balked, the AGO brushed past theLegislature’s careful designation of the funding consequences for non-complianceand filed suit against Defendants the Town of Milton and its Building Commissioner,demanding declaratory and injunctive relief. The AGO’s demands for injunctiverelief include, potentially, the appointment of a special master to rewrite Milton’szoning bylaws for it—a remedy nowhere provided in c. 40A and one that woulddramatically upend the right of local communities to govern themselves.7. For the reasons given in Defendants’ Answer to the AGO’s Complaint,the AGO’s action should be dismissed. Even assuming this Court has originaljurisdiction to hear the action (and for the reasons given in Defendants’ Answer, itdoes not), the AGO lacks standing to bring it.8. The AGO’s claims also lack merit. To ensure that all issues and partiesnecessary to resolve the merits questions raised by the AGO’s complaint are togetherin one action, Defendants bring this counterclaim seeking a declaratory judgmentthat: (1) Milton is not in violation of § 3A or the Guidelines because § 3A is not self-
executing and the Guidelines were not properly promulgated under G.L. c. 30A; (2)the financial penalties § 3A(b) specifies for non-compliance are exclusive, ruling outthe AGO’s demand for injunctive relief to force Milton to amend its zoning bylaws(or to have a special master rewrite Milton’s zoning bylaws for it); and (3) theGuidelines are ultra vires under the Act and are arbitrary and capricious.9. To start, § 3A is not self-executing, meaning that no one, including theAGO, can assert that Milton violates § 3A based on the statutory text standing alone.Section 3A(c) charges EOHLC with promulgating guidelines “to determine if anMBTA community is in compliance with this section.” In the absence of properly promulgated, lawful guidelines, there is no basis “to determine if an MBTA community is in compliance” with § 3A. "
Legislature did not mean for the “district of reasonable size” to include sweepingportions of a municipality.4. Under c. 40A, zoning in Massachusetts is implemented by localgovernments, not the state. To encourage municipal governments to amend theirzoning bylaws to conform to the Act’s requirements, the Act specifically identifiesthe consequences for those municipalities that do not: under § 3A(b), suchmunicipalities lose eligibility for funding they otherwise would have received underfour specific programs. Section 3A(c) directs Counterclaim-Defendant theExecutive Office of Housing and Livable Communities (“EOHLC”) to “promulgateguidelines to determine if an MBTA community is in compliance with this section.”The Act says nothing about allowing Counterclaim-Defendant the Attorney General(“the AGO”) to file suit to force a municipality to conform its zoning bylaws to §3A—authority that the Legislature has expressly granted the AGO with respect tonumerous other statutory mandates applicable to government entities, but did notprovide in the Act. If the Legislature had contemplated the AGO overriding localgovernment authority over zoning decisions, presumably it would have said so.5. Against that backdrop, this litigation exists because EOHLC took itsstatutory mandate to “promulgate guidelines to determine if an MBTA communityis in compliance with” the Act’s modest demands and vastly inflated its ownauthority. The statute is focused on housing density within a compact district of28reasonable size, within a short walking distance of a public transit station, ifapplicable. The guidelines EOHLC promulgated (the “Guidelines”) venture farbeyond that, by dictating to municipalities the percentage of their entire housingstock that must be zoned for multi-family housing as of right—in the case of Miltonand many other communities, 25%.6. When the voters of Milton balked, the AGO brushed past theLegislature’s careful designation of the funding consequences for non-complianceand filed suit against Defendants the Town of Milton and its Building Commissioner,demanding declaratory and injunctive relief. The AGO’s demands for injunctiverelief include, potentially, the appointment of a special master to rewrite Milton’szoning bylaws for it—a remedy nowhere provided in c. 40A and one that woulddramatically upend the right of local communities to govern themselves.7. For the reasons given in Defendants’ Answer to the AGO’s Complaint,the AGO’s action should be dismissed. Even assuming this Court has originaljurisdiction to hear the action (and for the reasons given in Defendants’ Answer, itdoes not), the AGO lacks standing to bring it.8. The AGO’s claims also lack merit. To ensure that all issues and partiesnecessary to resolve the merits questions raised by the AGO’s complaint are togetherin one action, Defendants bring this counterclaim seeking a declaratory judgmentthat: (1) Milton is not in violation of § 3A or the Guidelines because § 3A is not self-
executing and the Guidelines were not properly promulgated under G.L. c. 30A; (2)the financial penalties § 3A(b) specifies for non-compliance are exclusive, ruling outthe AGO’s demand for injunctive relief to force Milton to amend its zoning bylaws(or to have a special master rewrite Milton’s zoning bylaws for it); and (3) theGuidelines are ultra vires under the Act and are arbitrary and capricious.9. To start, § 3A is not self-executing, meaning that no one, including theAGO, can assert that Milton violates § 3A based on the statutory text standing alone.Section 3A(c) charges EOHLC with promulgating guidelines “to determine if anMBTA community is in compliance with this section.” In the absence of properly promulgated, lawful guidelines, there is no basis “to determine if an MBTA community is in compliance” with § 3A. "