gavel

Gavel

It looks like a recent court ruling about regulation filings related to the MBTA Communities Act will not jeopardize the Village Center Overlay District rezoning in Newton.

The ruling got messy when it came to the word “guideline” vs. the word “regulation.”

“Because they called them guidelines and they treated them as if they were regulations, we treated them as if they were regulations for purposes of compliance,” City Council Zoning and Planning Committee Chair Lisle Baker said at Monday night’s committee meeting.

It’s actually not as confusing as it sounds.

Words matter

The Massachusetts Supreme Judicial Court ruled last week that the MBTA Communities Act—a law passed in 2021 and signed by then-Gov. Charlie Baker to require 177 communities to zone for higher density near their MBTA stops—is constitutional and the attorney general has a right to enforce it with lawsuits against communities that refuse to comply.

But there’s a caveat: The state’s Executive Office of Housing and Livable Conditions, the ruling finds, failed to follow proper protocol filing regulations for the new law.

The Administrative Procedure Act requires any agency adopting or amending regulations to take certain steps to alert stakeholders and allow them to present data to that agency. The EOHLC filed those regulations as guidelines.

Guidelines are instructions or recommendations.

It’s like “OSHA suggests not running with a buzz-saw at work” vs. “You’re not allowed to run with a buzz-saw at work.”

Newton played it safe and put the buzz-saw down.

“When we did all the work in committee, before that ultimately resulted in amendments to the ordinance, we complied with the then-guidelines,” Baker said. “This is assuming that those guidelines would be replicated again in the form of a regulation in due course.”

Gov. Maura Healey has said that the state will file emergency regulations (effective upon filing) by the end of this week to get the MBTA Communities Act in line with the court’s decision.

Baker said it’s likely the newly filed regulations will include a notice that all communities that were in compliance with the MBTA Communities Act “guidelines” are de facto in compliance with the “regulations.”

The SJC ruling comes after a lawsuit filed by Attorney General Andrea Campbell responding to the town of Milton vote not to comply with the new law. Milton lawyers insisted the law was unconstitutional. The court has ruled that is not the case.

Almost there

So far, 116 communities have agreed to comply with the MBTA Communities Act. WBUR has a color-coded map showing which cities and towns are in compliance, which are not, and which—like Newton—are in “conditional compliance.”

Newton’s “conditional compliance” status relates to a zoning change made last year requiring special permits for retaining walls, and that’s currently being ironed out by the Planning Department and the Zoning and Planning Committee.

“We’ve got to finish up this last detail in order to be in compliance with what were then the guidelines but will be the regulations,” Baker said. “We might as well do it now and save a lot of trouble.”

And they did. That committee voted to approve a fix to the retaining walls issue with the VCOD right afterward. If the full City Council approves that, the city will be in full compliance with the MBTA Communities Act, which has been sanctioned by the highest court in the state.

Share This Story On:

Join our mailing list

Upcoming Events