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New England Legal Foundation Files Amicus Brief Supporting Milton is MBTA Communities Case
“State Should Follow Its Own Law Before Enforcing Compliance by Others”
Attorney General v. Town of Milton, Massachusetts Supreme Judicial Court, SJC-13580
Boston, MA (September 17, 2024) – The New England Legal Foundation (NELF) has filed an amicus brief in the Massachusetts Supreme Judicial Court, supporting the Town of Milton in the case Attorney General v. Town of Milton, SJC-13580. This case addresses the enforceability of zoning “guidelines” issued by the Executive Office of Housing and Livable Communities (EOHCL) under the Massachusetts Bay Transportation Authority (MBTA) Communities Act. NELF argues that these guidelines are not legally binding because they were not promulgated through the proper regulatory process required by the state’s Administrative Procedures Act (APA).
The case centers on EOHCL’s guidelines designed to assist towns like Milton in creating multi-family housing districts near public transportation hubs, as required by the MBTA Communities Act (MCA). Passed in 2020 to address the state’s ongoing housing crisis, the MCA mandates that municipalities within the MBTA service area must designate a district for multi-family housing with a minimum density of 15 units per acre, located within half a mile of a transit station. Milton’s failure to adopt the necessary zoning bylaws led to the Attorney General’s lawsuit seeking declaratory and injunctive relief.
NELF supports Milton’s position that EOHCL’s guidelines should be declared unenforceable because they were not developed in accordance with the APA’s required procedures. The APA mandates a formal process for the promulgation of regulations that impose obligations on municipalities, including public notice and comment. NELF argues that EOHCL’s guidelines meet the statutory definition of “regulations” and should have been subjected to these procedures.
In its amicus brief, NELF contends that the Attorney General’s enforcement action implicitly assumes that the guidelines are binding standards, which underscores the need for compliance with the APA. NELF urges the Court to broadly interpret the APA’s definition of “regulation” and reject the Attorney General’s attempt to minimize the procedural oversight by dismissing it as “harmless error.” NELF highlights that the APA serves to ensure minimum standards of fairness and uniformity in agency actions and that bypassing these procedures undermines public confidence in governmental regulations.
“The state should follow its own law before enforcing compliance by others. We believe it is essential for state agencies to adhere to the rule of law when issuing regulations that impose significant obligations on people, businesses and municipalities”,” said Dan Winslow, NELF President. “The lawless guidelines issued by EOHCL should not be enforced without compliance with the proper procedure for creating a binding regulation.””
NELF remains committed to promoting fair and transparent regulatory processes and will continue to advocate for adherence to the rule of law in the promulgation of public policy.
Read the full brief here.
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About the New England Legal Foundation: Founded in 1977, the New England Legal Foundation (NELF – www.newenglandlegal.org) is the leading non-partisan, non-profit public interest law firm in the region dedicated to economic liberty. NELF’s ongoing mission is to champion free enterprise, property rights, limited government based on rule of law, and inclusive economic growth. We believe that free enterprise is a foundational value of a democratic society and the best opportunity for people to lift themselves to prosperity.