By Joe Stewart

For more than a year, Wrentham has delayed full compliance with the MBTA Communities program, which seeks to increase housing in part through requiring zoning that authorizes multi-family housing “by right.”  In December, voters at Town Meeting overwhelmingly rejected a proposed overlay zone.  Then in March, Wrentham and eight other communities initiated legal action claiming that the MBTA Communities program is an unfunded mandate.  On June 6, Plymouth Superior Court Judge Mark Gildea denied Wrentham’s motion and agreed with the Commonwealth to dismiss the case.  

Not an Unfunded Mandate

In his decision Gildea wrote, “... Municipalities have neither pled specific costs for anticipated infrastructure costs, nor provided any specific timeline for anticipated construction projects.  Instead, the only allegations… before the court are generalized comments about large-scale issues they foresee, which are insufficient to sustain the Municipalities’ claims.”  Later, Gildea states, “...the court concludes that: 1) §3A is not an unfunded mandate; 2) the Municipalities have failed to identify nonspeculative direct costs requiring appropriation for anticipated infrastructure costs.”

State Responds

In an email exchange, Ed Augustus, the Commonwealth’s Secretary of Housing and Livable Communities, wrote, “We are pleased the courts have again affirmed the intent of the MBTA Communities Law, and we look forward to working with the remaining communities to complete their zoning changes.  Massachusetts’ housing shortage has led to unaffordable prices and rising rents, but the MBTA Communities Law is working to deliver new housing where it’s needed most and to bring down the cost of housing for all residents.” 

Augustus highlighted that 75% of MBTA communities have now approved multifamily zoning, many for the first time in decades, and the law is already working to produce needed housing with over 4,000 units in the development pipeline across the new multifamily districts. 

In March, the Healey-Driscoll Administration awarded $8.7 million to 10 fully compliant MBTA communities through the MBTA Community Catalyst Fund, enabling development of 2,332 new units.  The Catalyst Funds will be used for water, sewer, and drainage infrastructure improvements and, in the case of Arlington, Revere, and Somerville, to acquire land for housing development.

According to the Executive Office of Housing and Livable Communities (EOHLC), every community that requested support, including Wrentham, received it.  The Healey-Driscoll Administration has provided over $7.8 million worth of technical assistance and grants to 157 MBTA communities to support the implementation of this law. 

No Decision by Select Board

At its June 17 meeting, the Select Board did not move forward with scheduling a Special Town Meeting nor make a decision to appeal; instead choosing to go into executive session to discuss litigation strategy.  Town Counsel Jay Talerman summarized the court’s ruling as concluding that there is no unfunded mandate, that the law only requires the adoption of compliant zoning.  

The Select Board discussed possible next steps including scheduling a Special Town Meeting (STM) to enable voters to adopt MBTA Communities compliant zoning.  Talerman cautioned against scheduling a STM without taking the time to educate voters on the implications of not adopting the zoning, noting that, “Any rush is a rush to failure.”

Select Board Chair Chris Gallo asked how much litigation has cost so far and Town Manager Mike King responded that the cost has been about $13K.  Talerman elaborated that a future appeal might cost another $10K - $20K.  Select Board Member Jim Anderson asked about the plans of the other towns and Talerman summarized that Hanson has not made a decision, Holden has decided to not appeal, Middleton has decided to appeal, and Wenham has adopted MBTA Communities compliant zoning.

Talerman noted that an appeal would likely be decided by the Supreme Judicial Court (SJC) because this is a statewide issue.  He further observed that the SJC is likely to support the law and that overturning the decision is difficult. 

Following deliberations in executive session, the Select Board issued a statement, “After careful consideration, the Wrentham Select Board has decided not to appeal.”  The Select Board did not provide guidance on next steps, such as scheduling a STM or requesting that the state provide more time for the Town to educate voters on the advantages and disadvantages of approving MBTA Communities compliant zoning.