DiZoglio Throws a Monkey Wrench in Housing Plans (UPDATED)

The ongoing controversy regarding the state's so-called MBTA Zoning Law, which is designed to force nearly half the communities in the Commonwealth to accommodate new multi-family housing, regardless of existing zoning or local preferences, was dealt a significant blow Friday.

Of late, the Administration had been doing victory laps, cheered on by a State Supreme Judicial Court ruling that largely  left the law untouched, except for a some relatively minor details about the rollout process, which the state is in the process of addressing.

However, some communities took up another line of attack, asserting that the law will force communities to take on additional costs without a countervailing source of revenue, making it an "unfunded mandate," a no-no in state law.

State Auditor Diana DiZoglio agrees

This is statement from the Office of the State Auditor’s Division of Local Mandates (DLM):

“In response to petitions from several municipalities as to whether the MBTA Communities Act constitutes an unfunded mandate, and the extent of its fiscal impact, DLM analyzed the statutory language of the Act, the associated emergency regulations from EOHLC, the SJC’s recent decision in Milton, budget appropriations from the Legislature, and judicial precedent. DLM determines that the MBTA Communities Act is an unfunded mandate: 1) the SJC in Milton held the Act is a mandate; and 2) it is unfunded because the existing funding mechanisms do not fulfill the requirements of the Local Mandate Law. However, our office cautions municipalities that this determination does not guarantee that a municipality will be reimbursed for expenses incurred in complying with the Act. Municipalities can either continue to comply with no guarantee of reimbursement for expenses incurred or, under the Local Mandate Law, petition the Superior Court for an exemption from compliance until funding is provided. To determine the Act’s fiscal impact, DLM first needs to collect and analyze municipal data. A determination by DLM of the funding deficiency will be accepted by the Superior Court as evidence of the funding necessary to sustain the mandate.”

While it is unclear whether there will be any relevanc for  Franklin or Medway, both of which have taken steps to comply with the mandate, in nearby Wrentham, which has resisted the state so far, the story is different.

Wrentham Reacts

The Wrentham statemen noted that DLM issued a determination on Friday that the MBTA Communities Act does constitute an unfunded mandate because the Supreme Judicial Court ruled the Act is a mandate and because the existing funding mechanisms do not fulfill the requirements of the Local Mandate Law.

"Municipalities can either continue to comply with no guarantee of reimbursement for expenses incurred or, under the Local Mandate Law, petition the Superior Court for an exemption from compliance until funding is provided. The Town still awaits the issuance of its requested fiscal impact analysis from DLM, which will determine the financial costs relative to compliance with the Act," the town wrote.

And, the statement noted, the Town of Wrentham is currently reviewing the determination with legal counsel and evaluating next steps. The Select Board will be discussing the determination at its upcoming meeting at 7:30 p.m. on Tuesday, Feb. 25.

Statement from AG (Monday, 2-24-25)

Statement from Attorney General Andrea Joy Campbell: “High housing costs burden our residents and stifle our economy – and responsible zoning is the solution to this crisis, as most of our communities understand. The Auditor’s claim that the MBTA Communities Law is an unfunded mandate is wrong, and, more importantly, this letter has no effect whatsoever on implementation of the Law. If those who oppose housing affordability try to make a similar claim in court, the state will vigorously defend the law, and we intend to be successful, as we have been so far.”