On Wednesday, January 8, 2025 the Supreme Judicial Court (“SJC”) issued its long-awaited decision in Attorney General v. Town of Milton (Docket No. SJC-13580). The SJC’s decision answered three questions. First, the “MBTA Communities Act” (“Act”) is constitutional and by vesting certain powers in the Executive Office of Housing and Livable Communities (“EOHLC”) did not violate the separation of powers. Second, municipalities must comply with the Act or be subject to the penalties set forth under the Act and/or be subject to potential enforcement by the Attorney General via lawsuit seeking declaratory and injunctive relief. Third, the “guidelines” promulgated by EOHLC are considered “regulations” and therefore subject to the State Administrative Procedure Act, G.L. c.30A, which EOHLC failed to follow thereby making current “guidelines” unenforceable. Under these findings, the outcome of the suit resulted in partial judgement for the Town of Milton as relating to the current unenforceability of the “guidelines” and dismissing remaining claims.

Overall, this decision holds that the MBTA Communities Act, and the powers of the AG to enforce it, insofar as they are seeking injunctive/declaratory relief, are valid and constitutional. The “guidelines” however, have been rendered unenforceable in their current form and EOHLC must follow the steps set forth under the State Administrative Procedures Act. We expect to see EOHLC promulgate emergency regulations under G.L. c.30A and take all necessary steps to be consistent with the statutory authority provided to them. The full text of the decision can be found here. MassNAHRO will continue monitoring this issue as it moves forward. Please feel free to reach out with any questions.