Justices on the Supreme Judicial Court appeared to cast doubt Wednesday on the Town of Marshfield’s argument that the MBTA Communities Act creates an unfunded mandate.
Marshfield was appealing the dismissal of its case by the Superior Court last June, despite the fact that Marshfield residents approved zoning rules complying with the act in October after rejecting them twice.
Arguing on behalf of Marshfield, Town Counsel Robert Galvin said the town has had to bear “extraordinary” expenses to comply with guidelines from the act, which requires that almost 180 municipalities across the state to take up zoning that allows construction of multi-family housing by right near public transportation. The law that has stirred up controversy in multiple communities.
Galvin specifically highlighted costs the town incurred over modeling to analyze different potential zoning plans, claiming the regulations required that. But when asked, he couldn’t point out where those requirements came from.
During an exchange with Justice Serge Georges Jr., Galvin attempted to explain the costs to the town.
“Reasonable inferences are based on facts, right? So, are there facts that say, line item by line item, that we can point to and say, ‘These are the direct, consequential costs of having to comply that are outside of the local stuff that we have to do in any event?” Georges asked.
“We did not detail those [expenses],” Galvin started to respond.
“That’s what I’m getting at,” Georges interjected “So, you’re asking us to rely on reasonable inferences, but you’ve tried a lot of cases. And you know that the standard jury instruction for reasonable inferences is they’re based on facts that have been proved to you. So, we need those facts, don’t we?”
Galvin said that the crux of their unfunded mandate claim is that they never got a chance to try to explain the expenses and pointed to cases in other towns. The justices, however, seemed wary of that argument.
Speaking on behalf of the state, Esme Caramello, head of the housing affordability unit in the state attorney general’s office, contended that the MBTA Communities Act doesn’t impose anything beyond an incidental administration expense.
She said it mandates new zoning conditions, or a “state of affairs,” for the communities that fall under it.
“To get to that state of affairs, some communities, including the community of Marshfield, need to take some action to meet the obligation,” she said. “But that action is incidental to the primary obligation. The primary obligation is to have the zoning in place.”
Georges pointed out that compliance can cost towns and cities money and can go beyond what local zoning officials typically do. But Caramello countered that the question is about mandatory costs, not costs incurred in the process of coming into compliance.
“This isn’t like an environmental regulation where you need to hire a consultant to analyze,” Justice Scott Kafker said. “This is just politically complicated.”
“Exactly,” Caramello said. “And those costs, again, are not imposed by the statute. They may be there, they may be real. But they’re imposed by the community itself, not in a negative way, but that’s where they are attributable to.”
The MBTA Communities Act has spurred multiple court battles since it was enacted in 2021.
Last year, the SJC ruled the law was constitutional and that the attorney general could enforce it.
On Monday night, voters in the town of Holden rejected a plan that would have complied with the law, setting itself up for a lawsuit from the state.
